i'd like to rely on the brief which i believe is pretty comprehensive and the issue i'd like to address with the court is the issue of possession of the drugs involved in this case but first i must make a conspiracy to distribute drugs but with simple possession of a distributable quantity and so we don't have a conspiracy case we don't have any type of a gun possession case where i would suggest a different definition of possession would apply but in this case we have a drug possession case and if we look at judge carps ruling on the direction and control over the cocaine puts this case near the margins of what might constitute constructive possession so even the judge stark recognizes that the issue ramrez until the day of the transaction or roscoe testified he had never met a defendant until the day of the transaction so i would submit there's not much evidence other than the fact that the guy showed up with the drugs then released romero's was the guy that had the twenty kilos for some reason he's not in this case the drivers in that case these two and never met saw i guess you could proceed under an accessory argument but i think it's but again your honor if we look at the facts of the case in terms of who he would be an accessory to he had never met ramirez remember is that not a defendant in the case isn't doing what most brokers do that is you're helping both buyer in the cellar yes you ortega there needs to be some exercise of control over the drugs in order for there to be a finding of possession there has to be some type of an exercise i'm going to i'm going back to the abetting  clearly arise co was in possession four times it's with intent to distribute and why isn't it fair to treat your client as eating in a petting him in that effort your honor i i don't that all i know is the government didn't make that argument i mean in closing argument they said well he walked into the little room he gave the instruction put it over there and that constitute direction and control that was the government sorry saw and and we would contend as a matter of law that that does not constitute sufficient direction and control so  gate told to roscoe a word of parked the car a roscoe open just truck noticed the clothes he had had in a duffel bag were now scattered around the truck trunk of the car in the drugs were in the bag roscoe took t drugs because a roscoe was not going to leave them in the duffel bag because it was his personal bank robbery at all said he would ask sergio they left the room when the police arrived so it was all within two minutes comment that this was in the femur all of those action is supported by the testimony of mr roscoe again highlighted in bold on page seventeen and we would contend that just because mr rebbie eto was in the room at the same time that drugs came there that his direction to put it over there if in fact it was sad because if you recall the testimony of the confidential informant was one hundred eighty degrees different he said no such conversation occurred but viewing that the evidence in the light most favorable to the government i think were bound by a roscoe's testimony and his testimony was that robert udell said put the bag over there again remember the two hundred thousand dollars had never exchanged hands so the price of the drugs they had been paid for so if in fact really you had no was in his role as a broker for the buyer we would contend there was no possession mr schindler was there evidence at trial instruction given by the court at that time because i had objected to that in a live in the lemon instruction was given and it was given the judge told the jury that they should consider that please the court balls or if the united states the defendant says that there was no evidence tying ramirez to the defendant or mirrors the defendant to the supplier that that's just not the case  to look at a transcript beginning of pages one thirty one and then again page one forty one those two sections of the transcript or where the government introduced the translations of the recorded conversations between the defendant and the c s prior to the deal first the day before the deal and then the day of the deal and that evidence lays out that the defendant was very connected to the supplier source that there were thirteen more kilograms of cocaine available for sale after these six kilograms of cocaine your honour's confer two things and jury was able to infer two things from that one that the defendant was in fact talking with the source and so the defendant knew the supplier that the defendant was working with the supplier and two that the defendant was trying to make this six kilogram deal succeed that's significant for the aiding and abetting argument that the dirt the government didn't fact put forward to the jury  it was an important piece because the defendant's trying to get that six kilograms trying to get the source the c s to sell off the six kilograms so that the c s would be willing to buy an additional thirteen kilograms from the defendant and from the defendant supplier all of this your honour's is evidence that the defendant was with the supplier the defendant knew the supplier the defendant was working with the supplier hand in hand and it undermined the defendant's argument simply by the jury's verdict there was sufficient evidence to support the jury's verdict in this case both on the theory the direct theory that the defendant was in fact in constructive possession of the drugs for those few moments that the defendant and roscoe were standing in the bathroom together without the c s and with no money having changed hands and under the aiding and abetting theory that the defendant was aiding and abetting  of the drugs and trying to make or roscoe's distribution of the drugs succeed unless your honour's have any questions on either this point or any of the other points raised by the front of the government will rest on its briefs i'd like to  actually come out and say it government disagrees with that point the government first off there was a jury instruction presented to the jury on the aiding and abetting very second off during closing argument the first part of the summation argument presented by the government was to explain to the jury the elements of the different defense and how the jury had to view the evidence in light of those elements and during that recitation of the elements theory so it's actually excuse me actually put forth during the argument and then the government switched over to talk about what the evidence was that was presented and that evidence equally supported a constructive possession theory and the aiding and abetting theory government talked about the evidence i just discussed with you talked about all of the recorded conversations the significance of all those recorded conversations and armed with the aiding and abetting instruction that the government discussed with the jury and that the jury received from the judge to the jury could take those that those facts that evidence and reach its conclusion based on the  aiding and abetting theory counsel i wanted to raise with you the concern about that egypt's testimony on the condition of the tape recording and assume all of us are familiar with the idea that sometimes tapes malfunction and sometimes batteries run out but what was offered a trial was a very different explanation that this was an edited tape i'm not tracking that hard and i'm troubled by that explanation so now i i don't believe that special agent present his testimony was that in any way that it was an edited tape special agent for sale was just confused by one page worth of questions that he received from government counsel on what happened the government was trying to front the issue that the tape didn't fact malfunction that we only received the first hour of the report and special agent present oh as i read the transcript and as i was there during the testimony believe that believe that he just he i think you just got it wrong he just didn't quite understand what was being asked and then the government the question was is that the recording from the sixteenth is that a complete recording of all three hours or is it some subset of those to go answer it's a subset and what is the reason why only a subset was recorded answer because there's a lot of social conversations on there that were not part of the deal right that's that's just confusion that's not him saying that he's turning on and off the tape or that the source is turning on and off the tape i understand his answer to mean that he understood the question was why isn't it that that the full recording is all drug talk most of the recording most of what we got from that first hour of conversation between the source and the defendant on august sixteenth had little to nothing to do with sure with the drug deal i'm sure and i think that's what he was saying and your hon that the government did try to clean that up through that course of questioning and more importantly the defense had every opportunity to cross examine special agent for sale on that point and special agent resale got it right during the he said he testified that the tape ended at i believe it was right around ten forty ten forty five and that the deal took place according to the report that he prepared about an hour or two later so through the defendant's cross examination the defendant very clearly got out to the jury that the tape stopped before the drug deal took place the source was not able to turn the recording off and on that was the sources testimony correct and special agent present his testimon so what was presented was not an edited version correct or was it was the further well i take it back what was presented to the jury was it an edited version of that  and it was maybe it and you to give it even further explanation this is a spanish language reporting so the full hour of the recording my memory was was not presented to the jury what was presented to the jury was the english translation and transcripts of the pertinent narcotics type conversation that took place over the course of that hour the beginning of that conversation was introduced  through a request by the defense at the final few seconds of that hour of the conversation was in reduced the parties asked for an instruction i believe the parties received instruction the jury received an instruction about why it didn't get or that it wasn't to consider the fact that it didn't get the entirety of the hour of that conversation and the defense again had an opportunity to cross examine and had an opportunity to argue and did argue that the government was up to some no good up to some  submissions for an aiding and abetting instructions so i i have no reason to think that the government certainly didn't over at least didn't intend to take the aiding and abetting theory off the table and i don't understand the defendant's theory frankly sure and as an accessory it doesn't matter which side he's representing which side is helping as judge him and hamilton noted during the government defendants argument can be helping both sides just wants the thing to succeed government in that instance had probably introduced sufficient evidence to establish stuck to possession but had in fact introduced sufficient evidence to support it in a battle and in that case there was a person or taiko who was sitting in a truck guarding a hand a small bag of heroin and the owner of the drugs was in a coffee shop meeting with the buyer who turned out to be an f b i informant the three of them meet possession of the drugs i also do want to point out the manzella case that's referenced by judge stark that the defendant mentioned in that case i was reading it again last night the significant difference between that case and ours here is that the government in that case didn't request a a and aiding and abetting instruction and no aiding and abetting instruction went to the jury that's entirely different from the situation that we have in this case so again i must there are further questions from th be charged with aiding a government agent in the possession of the cocaine and judge parker agreed with that now nothing was said about eighteen or abetting or roscoe are ramirez but in terms of aiding and abetting sergio the government agent it was agreed that the government would not make that argument because the government agent could never as a government agent could never  distribute but although the jury received an aiding and abetting instruction the government made only passing reference to that instruction in its initial closing argument never argued that revenue had zero could be guilty based on facilitat roscoe's possession and does not defend a jury's verdict on that basis and its response so that's again supplemental appendix eleven as to the issue of  whether a false statement was a made by the agent present it in the reply brief page six and seven this is excerpts of the testimony of the agent he was directly asked all right and we're all three hours of these captured he says yes captured meaning we're all three hours successfully recorded by the recording device that you provided to the cia yes it's pretty clear that he's giving the impression that all three hours were captured now you you know that when the government presents its case it had a recording in one i believe and it contains snippets of conversations that recorded on this tape and this is what he's introducing into evidence and the preface is well we're all three hours of the conversation recorded yes they were but these are just snippets on in one of what was recorded and then he goes on the recorder has a memory life and a battery life of approximately three hours so on this particular day on the sixteenth of the length of the meeting simply exceed the capacity of that recording device yes not true so we would contend at the very least we should have gotten in the struction from the judge