raising sufficiency of the evidence challenges to two of the four counts that mr bush and was ultimately sentenced on first there was insufficient evidence for a rational trier of fact to find beyond a reasonable doubt that the conspiracy to manufacture methamphetamine charged in count one involved five hundred or more grams of a mixture or substance containing nothing but i mean we can cut to the chase i mean maybe that's an ill fated p there's really one issue here and that's and that's how does this court define the phrase next year or substance for purposes of the minutes or a minimum sentence in twenty one u s c section eight forty one frankly this circuit has never addressed that issue after the united states supreme court's decision in the our position is that under the market oriented approach which is described in the chapman case and if your substance means the amount of drugs which without further processing are able to be either distributed or consumed now in order to understand a fully understand argument i have to quickly talk about the facts of this case which involved some numbers and i apologize for that there were there was methamphetamine or methamphetamine precursors found in various places around the house from the right in this case first there was a pocket of material that was found in the garage there was liquid inside that bucket which contains seventeen point grams of pseudo that's a dream that the r words there was testimony from steven reed which whose testimony really is key i think to mr bushman's argument in this case is that the seventeen point seven grams of studio after being could be made into thirteen point three grams of methamphetamine he was using a seventy five percent conversion rate based on the methods that the mass lab at that it was using to create methamphetamine there were also a hundred and eight grams of pseudo ephedrine found inside the house mr reed testified that fifty to seventy five grams of methamphetamine could be manufactured from that studio ephedra i think and based on the phosphorus method that was being used at that lab let's assume for purposes of argument that they could actually manufacture the high end of that range seventy five i don't include this in my briefing but i think in fairness to the government in applying the standard i think i should also court could consider the total weight of all call that a solution even the solutions not the right word because under your marginal oriented approach that would be that the form in which it was sold absolutely and the chapman consider that in terms of the defendant's ability to cut or step on the pure math then fair to mean that was found and say was this that he had the one hand pure my next question because we do have a conspiracy count here is that don't we have to look at the evidence that was before the jury that included this spill of the policy enterprise's methamphetamine distribution activities and and what evidence is there in the record that while they might have caught him on this particular day with this the mouth cooking if i could use that term the testimony was that they had previously distributed many more people grams or grams of meth them well and that's the problem with the government's case here is there isn't anything in the records to indicate that there was distributing prior to this day they just taken possession of that that they were they were unlikely unl manufacturers in the sense that mr bush when and company had just taken possession of this property several weeks before this was in essence that the king county detectives had been investigating mr bushman for a year did he not testify to anything with regard to what mr bush was he had been investigating mr knight for a year ok and then that night with the charge coconspirator with the right who did not who did not live on the premises apparently mr knight i mean i think the theory was that mr knight was sort of the main cook and he would come into his work in the garage mr roberts mr bushman actually lived in the house of this record for sentencing purposes considering the full scope of the enterprise's activities including what mr knight was up to if not good law in my opinion in the sense that it was decided to days prior to the u s supreme court's decision in chapman the language and culture and felix specifically says you know we're we're not just citing this on a marketable basis they actually use the item is so tiny that you cannot strip it without the blotter paper or whatever else the carrier medium is the question is is is the use of the item necessary for either the distribution of or the consumption of the drug and in this case we're talking about the jury being allowed to consider on the jury considering and finding a requisite amount based on what is essentially not only waste product but toxic waste product that would be dangerous could not be distributed could not be ingested in it's splits down you know obviously we like the seventh circuit mr bush was quite fond of the seven search it right now because the steward of it and the story of in the end it was a two thousand and four case which i cited in both opening in the reply br factually very similar to mr bushman's case in terms of the type of mixture that we're talking about and you know we would like the circuit to adopt the reasoning in stuart as far as the split among the circuits  i had this written down yesterday and i know exactly where it is on my desk but there are there are several there are several circuits i think which hold with stewart there's the fifth circuit which kind of holds with stewart but says there's if that's what we're down to now there isn't we don't believe that there are that i mean it all comes down to how do you define the phrase mixture of substance and that and the rational way to look at it given that what we're talking about is that i think that the distribution and consumption of illegal narcotics is to talk about what is actually distributable and what is actually consumable what is actually i don't know how they make x this is the are these there are drugs that are are manufactured like methamphetamine in the sense that they can be homemade like ecstasy like crack cocaine i am not aware of drugs that are manufactured in a homemade way that that create the kind of you know by products and waste products and this does seem to be kind of in a class by itself in  was even putting aside for a moment the flask judge thomas was quick to point out that there was overwhelming evidence that this conspiracy and it was a charge conspiracy had been manufacturing methamphetamine for more than just that day the evidence  show for example that downstairs where the children were living in this house the detectives found methamphetamine coffee filters during the in the living room they found empty suit of president blister packs  the question really would be if he had that if the charge was manufacturing that because the charge was a conspiracy to manufacture i think taking all the research will include inferences in favor of the government and the russian car factor could have come to the conclusion that question is what evidence was before the jury of that ongoing conspiracy over what period of time was charged in the indictment over a five year period was a five year period there the jury could conclude from the it it would have been different except for the fact that there would have been evidence of what had just taken place presumably and the facts here i guess is what you're saying is it doesn't matter when they walk in it matters that in fact during a pro interested in deciding whether or not methamphetamine is in itself a different entity it really is and the reason for that is because of the toxicity that goes with the manufacturing process and because of that approach of your honor's are inclined to even consider that that the process of manufacturing is a necessary aspect of the distribution of methamphetamine because without it it can't be distributed almost similar to the  campaign i just want to say one quick thing about what you saw talk instead i actually was searching frantically for the indictment i did it may or may not say a five year period but the evidence is structured to a very brief period of time the time during which mr bush than five hundred marines they could look at all of that they couldn't rationally conclude that on this on this other there's been no they found pure methamphetamine in the bedroom which is she argued to us could be construed by rational fin of fact as having been the product of a previous manager you could double the amount of that based on the fact that the match that had been cut was sixty percent pure it will give them the benefit of the doubt it will double the amount of that with caffeine cut in everything else and you still speculate and that's and that's what the that's what they were asked to do in this case or what they would have been asked to do have that been the government starting a trial i think that's i think there's a there's a couple other issues too