testimony several times the government sought to to set to admit the testimony basically the issue here is the in furtherance of the conspiracy element of the hearsay exception we believe the government  admissible in the end for our purposes it doesn't matter because neither one of the neither one of those three had any use for the information of the time that was that it was conveyed if it's about cub she had no use for the information she knew they were late she knew that they had been shorted but they came back with a not enough methamphetamine for her purposes it was idle chatter between two coconspirators about the reason they were four days late coming back from arizona  it was about bill and ward they had four days in arizona and then eighteen hours driving back to discuss whether or not they were going to remove matt from the conspiracy if that is the reason that this is admissible the removal of matt from the conspiracy did not happen until many months later there's no testimony whatsoever that this was the incident at the time that removed matt from the conspiracy and there were other issues regarding money and drugs surrounding particularly money for a motor cycle surrounding the relationship between man and his father it was it had a huge impact on the trial couples one of the few witnesses against mr elder aside from michael caring guy was also referred to his land in the records and and and clark did provide evidence and the unfortunate thing about the appeal as we stand is most of the trial was about bill elder and when we're narrowed down now to just matthew the there was very little evidence about him there was some there was certainly testimony from land and clark or grange and clark that he was sort of the middleman between curing and then bill elder but it was shaky they were reached he does have to be resentenced and i one would like to say that the most i could not leave it to the district judge to reach that was what i was going to say your honor is that at this point it might be prudent to send it back and allow a full refund saying not only on the issues that that matt could not raise because he was mandatory life whether he went to trial or not but also the issues regarding the one thousand nine hundred nine conviction which is unclear from the record we believe because the government government sought to have it under the coconspirator exception and if they're going to seek for that and that's how the district court judge met it was under the coconspirator exception then they do have to meet all the elements about exceptions  may please the court brian writes for the government first which posner this court can affirm on any grounds that this court wanted to go in the reliable hearsay that would be a grounds to affirm that being said the government easily met the reasonable basis standard to admit this as a statement of a coconspirator i think defendant's argument premises that rule on that each distinct conversation must lead to concrete action and that is not the way either the rules reads or how this court has interpreted it's only if the statement is in furtherance in some way and that can include updating coconspirators giving them background information and here i think either way you read or understand that statement  qualifies as if it was ward and bill elder talking and to each other they were discussing the status of the conspiracy and essentially that they were angry and perhaps they were going to expel mat or not which eventually did happen though it didn't have to happen to meet the rule the fact that there was a distinct action coming from that statement surely means that it was in furtherance of the conspiracy one of the things that you say is that had an interest in being updated about the progress because of  going to to make so it was necessary for her to know where her supply was going to come from at i think possibly one of the reasons that she was an informant till this time is because they road back  females or strap on identified females i should say that were not part of the conspiracy so i think it's likely they did not want to talk about it the internal workings of the conspiracy around non conspirators so it seems like the first time they had a chance to inform cup they did that was the second way i think the government meets the reasonable basis that yes she was a low level supplier but still even if that low level she would need to know where her supply was going to come from and and that would lead to her making more meth on her own if necessary i either way the government met the reasonable basis standard and there is no requirement that there must be a distinct action there are no questions and i just want to mention the sentencing your government agrees that there needs to be sentencing i mean certainly to score could go ahead and decide the issue about the second arizona conviction which i think certainly qualifies as in conduct relating to a drug offense considering the offense is possession of equipment or chemicals an order to manufacture narcotic drugs i think that clearly meets the standard on that too i think on that defendant argued defense argument rests on two premises which are and correct one that elders previous conviction actually had to require had to have possession of a drug which is not true because it only has to relate to a drug offense and then too it was mentioned today too much but i think in the briefing there was a lot of discussion about the fact that the arizona statute had a laundry list of items  i think that eight zero to forty four is definition arizona's definition are significantly overlapping because eight o two forty four prevents it's depressants stimulants anabolic steroids marijuana narcotic drugs the arizona statute has five categories now there are a lot of individual drugs within those categories but the five categories almost exactly mirror those being depressants stimulants anabolic steroids canada maddox and hallucinate specialist never be full resent  hundreds i think there are some holes in the government's theory about this hearsay one is that these two women made him possible for bill and or to talk about the delay i find that very hard to believe anyone who's been on a trip with three hundred other people you're not joined at the hip the whole time that they were two other women who were not involved in the conspiracy a why were they there and b they were probably left alone where the two men sent to deal with the conspiracy which would give all i agree with him that this court can make a decision on any basis in the record there's not much of that basis in the record i question the reliability and the primary reason i question the reliability of the statement is because ward was part of the conversation as well and he also testified pursuant to a cooperation agreement and if he had remembered the statement as being so important to him and bill he would have testified about it but he did not so i also  unreliable on true full of i think my primary problem is that word didn't run remember a testify to it if he was part of that conversation that was so clear in laurie cups mind why wouldn't he have testified to a particularly since one witness right call cup yes cup but yet yes she was what do you need more i think if if she was the only one testifying for example of war had also been a defendant then you know there's not a whole lot to question her custom money there's not a lot of one to question her testimony on that but when one of those other participants is also testifying but does not testify about that and does not remember it and i think that certainly undercuts her credibility and reliability in that statement what incentive would she have to lawyer well certainly i don't know she was one of the mandatory life but most of the people in this conspiracy qualify for mandatory life and if they testified for the government got those taken off got the fifty one taken off she had been a methamphetamine user for thirty years my guess is that she was a mandatory life ball of fire and she was trying to save her own life so why did the gave no information about the conversation and he said he didn't remember i don't remember if he said he didn't remember or says he testified about that and didn't include that as part of his