and the issue i want to discuss this morning is whether or not the government produce sufficient evidence to prove the production of more than fifty grams of meth and i'd like to read from the government's brief at page thirty two by me says furthermore even assuming argue wendover that pact the person who testified provided an opinion he was testifying as a lay witness as required by federal rules of evidence seven zero one  testimony concerning yield rates was rationally based on his perceptions and was helpful to the jury's determination of effect an issue he did not base is yielder a conclusions on facts or data that would otherwise be admissible as experts are permitted to do under federal rules of evidence c federal rules of evidence seven zero three thirty pack reliance scientific or technical knowledge concerning the nature of the chemical reactions involved or the mechanism by which certain variables affected the year this court has explained that a witnesses specialized knowledge or the fact that he was chosen to carry out an investigation because of this knowledge does not render is testimony expert as long as it was based on his investigation and reflected his investigatory findings and conclusions and was not rooted exclusively in his expertise what other conclusion could we come to after mr defied at the conclusion of all of the government's evidence in this case and she that he was there a person who was going to demonstrate number one is me there was no objection to this testimony was there no there was no  n and there was and you were not i didn't think that there was an argument in the brief explicitly that this was inadmissible testimony the issue is whether assuming this testimony is admitted it does it combined with other evidence to support a jury's verdict that as to the amount is that not the argument that that is the argument here under that that whether or not this is sufficient evidence to prove the production if we look at everything that the government put forth in it and what this gentleman is saying is i am somebody who has made methamphetamine pseudoephedrine here's how i do it and when i do it i use this many pills and i get this much meth that's what he's saying based on his actual experience of what he did and what he saw in his experience right ok and that and the jury is them according to the government supposed to say it well if this fellow gets x amount of methamphetamine that they made was acts just like this fellow did that's the that's the logic exactly judge and if we back it up how do we know or whatever this was their number one that the coleman method even produces methamphetamine i'm sorry now go ahead and say i mean there's two issues number one's issues is the conspiracy that they were going to do this they were going to put put this all together to try and makes about that the other the other count is whether or not they actually produced it and it the actual production here that i that i'm focusing on that that how what other evidence there were what other conclusion can be drug the fact that he has made he said actually he has made himself scientists who says you take this amount of stuff and it produces this is this amount of meth you have a reasonable argument that so he got about fifty percent yield i expect if you shake it a little bit differently or use the fuel a little bit differently maybe your yield rate the two defendants here hundred sixty seven grams if you add all that together you have to go down to eleven feet of about nine percent to say there's not least fifty grams involved here so it's hard for me to understand why the evidence is insufficient  it and so forth so it really wasn't a question of not knowing what was it isn't a question that they didn't that they were they they put this together to maybe that their intent was to was to produce it but the question is did they in fact produce it what evidence was there that in fact this method produces methamphetamine and how much methamphetamine a produces in it and it's on the basis that we that we brought our objection that that you can't rely on  candy i don't know what they were producing judge i supposedly hear you over there were these cooperators who talked about we made methamphetamine we sold it as methamphetamine nobody came and shot us saying that  what they got wasn't methamphetamine i mean  what you would be saying is that there can be no conviction for at least a substantive offense as opposed to a conspiracy case unless there is a seizure followed by a chemical analysis of that product now no you that her own here and sell heroin there we have lots of customers use myself why would you need someone to come in and explain scientifically how the heroin was made or who produced it or whether this really was irwin if if you had that kind of evidence well and that example there there actually selling the product there they're not alleging that we're in a lab here and were making it and then were then taking it and selling it  it's one step beyond they the they have it they have what they believe it is is not may send you we had we believe was heroin and we sold it which we bought from somebody they could be convicted of selling it but if they said we had what we believe was heroin because we manufactured it from raw ingredients and sold it they couldn't be convicted of manufacturing it would all depend on what the evidence was that that was produced to show that that in fact it was produced i think there there but but in any event i would simply state that and in conclusion that that the cumulative effect of of that failure of testimony together with the circumcision of the stars that was given because the case is wholly circumstantial and  he be given a fair trial on that back in the return the fact that they didn't sufficiently prove the production weight and how the government proved greater than fifty grams was bootstrapped through a witness who they claim is a lay witness and we submit was an expert witness the federal rules  procedure the federal court in its infinite and in its wisdom requires the parties to complete a quarter of the questionnaire it does that in order to allow the court in the parties to familiarize themselves with the facts of the case and the which is was there any objection to this testimony on the ground that was improper or undisclosed expert testimony of well i'm going to tell you why there wasn't first of all timothy peck testified before the government's and somebody comes in and says i'm a ph d and i know how this thing works and i'm telling you this in my expert opinion and you just let it slide by how does the fact that you didn't have a hearing in advance make a difference is your isn't it incumbent on you to ask for  and move to exclude this testimony because improper week i agree with what you're saying and i think my thinking was that maybe their case agent was going to expound upon what this person said it took us by surprise and and so i agree with you so let's just say for argument's sake that we committed an error i don't believe we did but let's just say we did because because that the government's or my it says that we are raising it for the first time an appeal and we weren't we we raised it in trial court proceeding post verdict but you know pre sentencing the court has a gate keeping a function i think it would have been a coming up on the district argument is that it's late testimony now that maybe there's one question is that correct or is it incorrect there's a separate question of whether it's plain error that this was so clearly expert testimony rather than lateness to money we should notice the error notwithstanding that it wasn't brought to the attention of the court well i think this court should notice the error and realize and and the plane air standard of review should be taken into account here why is it why is it expert testimony his testimony and substances  i learned how to make meth i did it many times this is the yield rate that this is how much meth i would get from this amount of suit that every why is that not rationally based on his observations because i think that when you look at any dru case and how it is tried whether it's the government or the people of the state of new york when they when they're presenting their case at trial or to prove that the and i don't think appellate kingsley's not saying that there wasn't enough produced and in the this conspiracy but if you're trying to prove weight which is a huge element i mean after all my client had no criminal record whatsoever and by accepting timothy pecks testimony in his testimony alone i feel that you need to have an expert an expert has got to you but it is a different question you could say it may have been lee testimony but i don't think it's sufficient to support a weight determination i think i think that i'm agreeing with you and i feel that it it it's goes to the heart of the conviction of my client in that we had we had no basis we we at that point weren't expecting this person to testify if we reversed the conviction for the b one b count on the ground that there was inadequate proof of fifty grams to prove that beyond a reasonable doubt it would drop down to a b one c conviction they'll still be convicted i'd agree with you and there would be a no mandatory minimum right but the sentence that was given was higher than the mandatory minimum so the mandatory minimum didn't affect that and the sentence that was given is lower than the maximum that would apply to would be one c conviction are you saying that the evidence in the record is insufficient to support a finding by a preponderance of the evidence at the time of sentencing as to the drug quantity that the judge relied  do realize that the court gave my client a nine guideline sentence taking into taking into all the thirty five fifty three considerations but she probably would have gotten probation given her record had that had the jury not relied on the stim would be irrelevant that point the judge is set selecting a sentence based on a proponent first calculating the sentencing guidelines calculating the amount by a preponderance of the evidence and then subsequently is considering all the thirty five fifty three factors to decide whether to give that sentence or a different sentence and came out to this particular sentence now i suspect that if you're right that the count conviction is wrong there would be a resounding things i'm not questioning that and maybe that's good enough that you live to fight another day i'm just trying to figure out whether this is actually helping anybody well that i don't mean to interrupt you your honor but living to another day my client probably would be released by now she's been in custody for years and i do i think that this does go to the heart the fifty grams it goes to the heart i don't mean to quote woman gold either the judge found the judge found many more than fifty grams by a preponderance of the evidence not just fifty gram but you still it's an element of the crime to to to have somehow you have to have some expert testified about weight so i it just it why do you have to have an expert testify but with your own millions of cases  we have where the evidence of quantity is some notebook that somebody has where he says fifty kilos there's no expert there's a conspiracy and there is evidence about how much drugs  conspirators trafficked in well i don't think that was the case here and i think the government called timothy peck for a specific purpose and that was to testify about the him the number of pills it would have taken in order to produce this much math and i don't  i believe that that if you're if you if this is allowed to happen you're opening a huge can of worms that's what i'm saying that that if the government is allowed to prove prove weight and its cases by not having to  somebody to the stand who can say these are the methods this is the the literature that you that we use when we come up with this and based upon the number of pills and in this conspiracy this would have been the amount of methamphetamine produced based upon whatever scientific literature there are relying on then i feel that the can of worms opens and it shouldn't be opened in this case i feel that that this case should be sent back for some remedy and  f whether it's recent is saying on an amount less than fifty grams the remedy would be reversal of the b one b conviction and substitution of the b one c conviction and presumably that would entail the judge re sentencing the judge would do what the judge does i'm not sure it would be different but it might be than what the judge did the last time so that's clearly the remedy that is entailed by or i'm not disagreeing with you your honor i'm not disagreeing using there's there's just ample testimony here that everyone involved was doing this to make math they can they coconspirators are saying that's what we're doing cooking up math  and i think you and mr pack knowledge is that it depends on also what you put in two methods lead to different results but he has cooked many times using the shaking method and you know it as a my my thought was that from reading their brief that the claim was that he should have been qualified as an expert because he testified as one it now seems also they're saying that he and his testimony was was not expert enough but put wow or how much time is necessarily produced by a chemical reaction is not explained the how in the why which is what experts do and i'm thinking of a kind of a comparable situation in the ally drug contacts where you have to have experts explain the structure of a drug you have to have experts who will explain the the chemical reactions in the brain that produce a certain neurological effect which is required versus the testimony of someone who lay experience provides an adequate basis to determine quantity in this case beyond a reasonable doubt well again because of the way he's related to these individuals that they're all using the same method and i think again you learn the aren't that given the variation in the amount of math that would be produced by the way you use that method that we don't have to be worried about that in this case is that as your honor pointed out i mean i think that if you look at the entire quantities involved here are there much higher but here would be way over and as he's pointed out i think it would be such a low real rate that it i think relying on mr peck's testimony here is reasonable to suggest that it's got to be at least fifty i'd also point out math and that involved fifty percent so i think they the agreement here was to try to produce math and the quantity itself is a different question i think the evidence does stablished was over fifty  clear that if you if you are wavering at all if this is a matter that you would hesitate to you know to act on it and matter of importance to you do not you cannot find a reasonable doubt here i think it was it clear conveyed very clearly if the evidence is an for instruction it went to how to evaluate the quantum of proof with regard to each element of the crime that's your entirely different thing yes your honor i just came back also to the quantity issue i would also point out that there's testimony here that eight times as that was the testimony and junior was was was equally active here so were to tell you about many many cooks going on and again this gets to the idea that that the quantity is involved the inputs being put just briefly  going back to what i said you know whether or not the common method produced methamphetamine and how much it it produced was in this particular case wholly circumstantial based on what was presented you can talk about we want and what the batteries we want we bought the head the empty monkey do bottles and whatever but but then to come to the end of the journey here in say that the coke the co method produced this produces math and how much a produces there were there's no other way to characterize what timothy pekka to say the fact that although he was a late what this is that he and what i have to say is basically the same thing your honour's when you're talking about yield and you're talking about a number and that number is significant when it comes to sentencing in a case such as this i believe that is incumbent upon the government just call an something call somebody who is going to testify about yield rates talk about the scientific scientific reliability of cooking methods talk about this method that you know we've heard evidence about a trial is compared to maybe other methods and make it so the jury understands the importance and the necessity of what they're they're trying to come to a conclusion about just to assume because there's an overwhelming amount of math that's produced during this conspiracy that you  without that testimony they would have come to the conclusion that it was over fifty grams i don't think so after sitting through and trying this case i don't believe that's the case i believe that they relied heavily on mr pax testimony and without it they very easily and most likely the outcome would have been different they would have come to the conclusion that it was under fifty grams and my client most likely given her criminal record would have been placed on probation at that point thank you thank you all take the matter under