kind of thing and has explained to me that this case is not like dust and because this was not in a separate chemical compound it was part of the plant material there wasn't as to understand your forensic chemist's analysis and i don't i'm not sure she really explained that you could actually separate out practical terms between the way that the ephedrine is in ma wang versus the way that it's in a decongestant decongestant is manmade different ingredients are put together with federal and occurs naturally in the plant there's that sort of practical threshold for what they're most worried about what's more likely to be used to make methamphetamine and here if that threshold is five percent is is that as i read the rule the eight percent mixture that  once you have that out there's no reason to think that it would be any different than any other time that a judgment has been extracted from the curial whether it's a decongestant or its plan mature them both martinez and connors comes with us directly can't be prosecuted for distributing and fattening so if it were a totally unusable quantity that would be one thing but if there is some quantity in here the defendant thirteen hundred seven barrels a mile long distributed between december two thousand  my hands i was transporting i wasn't using it to make meth if the defendant was selling large quantities of fertilizer or decongestants from ottawa for some other purpose for cold medicines for making athletic supplements which is what a f supreme court's case chapman which is with us is based on whether that ephedra constituted a mixture and the bottom line is that this is the governor presented no evidence of that and that's the problem he the definition of the mixture in das which is based on offered no evidence of that so maybe in some other kids the government will have an offense or a case and they'll try to prosecuted and maybe they'll present testimony from their own experts that satisfy this standard but they just didn't do it in this case and that's what  where you're operating under either a preponderance of the others or clear and convincing evidence that most whereas the trial you're operating under beyond a reasonable doubt but the second thing is that i don't think there's any consistency at all in the fact that between being a mixture and being something that you can extract alone well that's a great question and what we need is an answer from an expert who would have testified at the trial who would have said this i don't know what the answer is because there's no evidence in the record one way or the effect i did not possess a federal because what i possessed was a mixture and mixtures are not covered by the stanchion and the court considered that and rejected and said no mixtures are covered by the statue now how can you read into that rejection of mr goss's argument he can change in that it unless it's a mixture it doesn't qualify and that the crucial question then becomes why was it possessed in this case there's overwhelming evidence that it was possessed in order to distribute it as a precursor for the thin phantom and manufactured what i mean why isn't well because i think any relied on chapman versus united states which is a supreme court case and it was saying mixed use our common chemical compounds are not covered and the question in this case the chemical compounds before the court  court and this court is a prior case where east plainly distinguishing between mixed you're saying these are covered and chemical compounds implying that those are not corrupt and so i think would be really trying to now really read both the questions that we don't have any expert testimony on any of this we don't even have expert testimony this year i'm just asking you from the standpoint of your appropriation for trial is is there any cannot extract the ephedrine well the reason why we can't hold this we don't have any evidence in the record as to whether this was a mixture well it was a chemical compound you know but you do have evidence that you can extract yes the prosecution presented the test them present in testimony from an expert that this was after derivative of a particular drug but didn't take the extra step to prove that the drug promoted muscle growth and the court found look it's their burden they have the burden of proof beyond a reasonable doubt that this was a listed chemical in this case and they just didn't do they didn't satisfy the test if i could i'd you would like i would like to address a couple the issues that we've raised on on cross appeal because the bottom line is that even if the is important with respect to the conspiracy conviction i didn't want to draw the court's attention to one part of the record that i didn't do in the briefs and that is the government's expert the record of one fifty one and this relates to the issue about whether mr lowe and his telephon conversations with those particular individuals whether they were distributors for him or whether they were purchasers of the of the product and at one fifty one of the excerpt this is the prosecutor who says who is describing these conversations and he says that there are between mr lowe and his customers who the government believes is his customers who the government will argue if you will sit he was selling this stuff to you so i think the government you know the trial they were taking a position that these individuals were customers and of course under this court's precedent you can't have a conspiracy between a fire and the seller so i don't think that that evidence is sufficient to establish the conspiracy with respect to a couple of the other individuals there was one in  the the conspiracy conviction cannot stand based on her because she's been acquitted even if the court disagrees with that even if the court says you know what just because she was acquitted does not mean that we can't rely on that rely on a conspiracy with her to sustain the conviction i still think when you take a look at the fact that the jury acquitted her number one number two there is no there's not one statement from her that's ever been introduced into the record to demonstrate that she formed and agreement with mr low to manufacture or system the manufacture of controlled substances there's there's not one statement from her to show what exactly was her state of mind and whether she agreed and then there's evidence in the record that she insisted that she did things like  evidence that she'd attempted to mask or eliminate in the indications on the packaging that might suggest an inference of guilty knowledge you drawn from that in addition to guilty knowledge don't we have to for purposes of mr los conviction have to grow all the inferences favorable to the government you have to  itself which is really the only inference out there in another self that demonstrate that she entered in this agreement to assist in the manufacture of a meth that to agree to manufacture methamphetamine and it's our argument that as the jury found that inference is just not strong enough to convict beyond a reasonable doubt the final thing i did want to touch on the mens rea instruction as to the eight forty one c counts on it's our it's our position that i know i've got an uphill battle on this because number one it's plain error and number two there's a model jury instruction specific mens rea that's included in that statute i mean there's no basis there's no legal authority that supports the the model jury instruction if you look at the supreme court cases the recent ones dealing with mens rea of the fan says they are they go bend over backwards to construe mens rea as an expansive manner and in this case what we're doing is we're actually writing the mens rea out of the statute and it's particularly dangerous because now what we have is a situation where a defendant can he doesn't have to know that what  the substance may be used to manufacture a controlled substance so what we we have is almost we have no mens rea at all the defendant doesn't even know it's a list of chemical and he doesn't even know that it's going to be used to manufacture a controlled substance he just needs to have a reasonable cause to believe could be used for the manufacture of methamphetamine or he was going to defraud them with his defense right but that but there is there isn't there is no evidence of or at least i don't believe the evidence is overwhelming or strong that he knew then because the l s d on the paper maintained its chemically identical form the supreme court held that it was a mixture and that even though it was not readily separable when someone consumes the l s d they naturally in the model one he said yes and he ultimately extracted one point two percent using steaming so this is in contradiction to if we tried to prosecute a substance if we tried to prosecute any crack cases where we had powder cocaine and baking soda we can't prosecute that we maybe as a conspiracy case but the person does not have crack cocaine base and till those two are mixed together and you have a different substance what does help is when the substance chemical from a compound under the under the technical terms of our your honor you can't install prosecutor because if the chemical compound the supreme court's definitions that's  of there and and you know you can use it so what's the difference well there's not a practical difference but what i'm conceding is that if we had some substance where there was not a federal he reads the u s supreme court decision is holding that where and b are i'm paraphrasing of course where and b are indicted for conspiring with each other and with each other and others that the supreme court's decision is consistent with the holding then if only the only evidence has to do with a and b and b is acquitted a must be acquitted two do you agree with that analysis of the supreme court in combination with the fact that there is a wiretap conversations with the distance showing the defendant is distributing marwan along with two individuals who are on the