All right. The next case we'll hear is United States versus Aaron Senior. Your honor is Gomez, Mr. Gilbert. Good morning, Aaron Senior works, doesn't it? To distinguish from Aaron Junior? Well, I'd rather have more distinction than that, Your Honor, but I'll address him in any way the court would like. No, that's all right. You handle it the way you wish. May it please the court. I'm Joseph Gilbert and I do represent a talent. Aaron is, uh, wore as Gomez before this court and like they are father and son though, aren't they? Actually, Your Honor, or is that not so? That that came out in sentencing. In sentencing, it was a statement provided from the minor to law enforcement officers came before the court that said that my client was his father. And, uh, you're not seriously convinced. No, Your Honor, but I think it's important for the conspiracy allegation and the first issue I wanted to bring up for the court, of course, is that the court should reverse the conspiracy conviction because substantial evidence admitted during the trial would not provide a reasonable fact find or proof beyond a reasonable doubt that Aaron. And, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and, uh, and when it didn't really go through cause it was when the bus occurred. It was, when it didn't really go through cause it was when the bus occurred. It wasn't the pickup truck observed, also, at the trailer? It was followed back to the trailer, uh, by agents after the second day, uh, the transactions that occurred at the food line on the 22nd of September. They followed it back, observed it go up to the trailer, and agent, I believe it was agent Marshburn indicated that he did not, he stayed around for about an hour to see if Mr. Aaron Warris Gomez came out and he did not see him. Although from his position in the woods, it was really unclear if he ever even saw. He never testified, he saw him go into the trailer either. Is it a disputed that he lived there? At trial, yes, Your Honor. At trial, it's really important to distinguish between the evidence that came before the judge sentencing and at trial. At trial, the only evidence we have that connected Aaron Warris Gomez to that trailer was the fact that the agents saw the yellow truck that he operated during the sales go back to that trailer in the agent's state for one hour. Who? The next who leased the trailer? Who leased it? At sentencing, there's no evidence who leased the trailer, Your Honor. I'm sorry, at sentencing it came in. At trial, there's no evidence who leased it. At sentencing, what happened was that agent Somerlin testified that he interviewed the landlord. There was in fact two different residences that were under investigation by the Johnston County police and by the Wilson County police, also, although that's not really in. So, at least information you're seeing came in at sentencing, but not at trial. That's correct, Your Honor. How about the rent information, the son paying the rent? The fact, the only evidence at trial of that was in Aaron McGail Gomez's wallet found in the house. That's not done. Yes, sir. Well, who we now know is that
. But at trial, a person who I opened the door and identified himself as Aaron Gomez had in his wallet, the rent receipt, which is Governor Exhibit 68, and it was admitted, I believe, around page 278, but it's not part of the record. Unfortunately, that exhibit's not for the court. That rent receipt, as I recall, basically simply said rent, made out to Aaron Gomez. It didn't have a middle names or anything like that on it. And it was the rent receipt. So you have a rent receipt made out to Aaron Gomez in the wallet found of a person who's not my client at the scene. You have agents who follow the truck back to the house after the second transaction and after the third transaction. The four transactions were all- Was there any suggestion during trial that Aaron Jr. was the son of your client? The government attempted it, but the court did not allow that. That evidence, if that was considered, would clearly be harmful error. What was that? Because the court specifically held it. It wasn't for the truth of the matter asserted and did not allow the government to pursue that line of questioning any further. What happened was the agent said, and I objected, the agent said, The generic trailer, right? He was the less see on the trailer? Well, there's no, there's no lease agreement, your honor. What happened at sentencing is that agent Sumberland told the court that he interviewed the landlord who owned that particular trailer. The landlord said that he rented it out to a group of Hispanic individuals, the same ones who had previously lived in the trailer that was owned by his son, I believe, and with the same family members own both. When he was showing a photo ID of my client, he failed to be able to pick him out from a photo ID. There was no evidence that he lived there at the trial. There's zero evidence that he lived there, your honor, Judge Gregory. No evidence at all. But he lived there. There's evidence that he went there. There is. And it was a stash house. Yes, your honor. Yes, Judge Gregory Neymar. There is evidence that, clearly, drug deals multiple times and that with that truck and the truck was traced to the trailer. Was he seen going in the trailer? There's no evidence that he actually was seen going into the trailer. The agent who testified about the first day said, I waited to see if he came out, but there's no evidence on the record that he actually saw. Why isn't that enough? Well, you're honor, I just, again, I think that it's not enough to be substantial. To be substantial evidence, it has to be enough that a reasonable jury concluding that this person who engaged in four drug sales was seen after the second sale to drive to a garage and mechanic shop where he stayed between 45 minutes and an hour and then seen to drive to another unrelated house for an indeterminate amount of time and then seen to drive to this house which ultimately ended up containing the stash. And then admittedly, the second day, he drives again to another house and he drives back to this house. Of this sale, she mean the trailer? The trailer, yes, sir. The subject of what we call it
. And coming back to the trailer. They followed him twice. Twice trailer. Yes, sir. But never saw him get out or talk anybody. No testimony to that effect, your honor. That would have to be just speculation as to what he knew was in the trailer. Exactly. Now, clearly, if they had something linking him to the trailer, something further within the trailer, if he made statements saying that, you know, that that's where he was going at the trial level, then that would be something. Right. And I think that it's important because the government, basically in their brief, sort of lumps it all together. They lumped together the sentencing and the trial information in order to support the conspiracy. Why doesn't that place him in the trailer? They trace him, they follow him twice going to the trailer and the trailer turns out to be a stash house and they know he's engaged in drug transactions. Even if, your honor, he's, even if he goes to that trailer, just like he went to the mechanic shop and stays for an hour. The mechanic shop, whatever he's, the obvious, the inference is that he's delivering drugs these various locations. But he ends up as a Zanker point back at the trailer and they just keep watching and they didn't see him come out. For now. For now. Twice. Twice. Now, I had to add one point. So it doesn't look like I'm trying to twist the record. The trailer is stash house. Clearly. Clearly there's lots of drugs in the trailer. None of which are connected to the sales that he made. There's no evidence at all linking the drugs he sold to the ones in the trailer. They gave him serialized money three days in a row that he ostensibly took back with him wherever he was going. None of that money is found in the trailer. There's literally nothing at the trial stage that links him other than mere presence at the trailer. And the judge did give a mere presence instruction. A reasonable jury hearing the mere presence instruction and saying, all right, what do we have? We have a guy who's overwhelming evidence of four sales to which he was clearly convicted of, the distribution, who then drives to numerous locations, one of which is the trailer. Didn't you say the rent receipt was in the son's pocket at the trailer? In the wallet
. Yes, or whatever? Yes, Judge A.G. It was in his wallet. One rent receipt. I don't know, but it doesn't matter if that's a rent receipt. That means it's some evidence. It is clearly some evidence, Judge Neymar. But now I want to add one more fact. The evidence of what, though, that's the question. Was it your client's name on it? Somebody, it was made out to Aaron Gomez. Now, whether it was Aaron McGail Gomez, whether it was Aaron, or his Gomez, that person who answered the door identified himself as Aaron Gomez. Right. So, but there's one more fact I want to point out because I'm sure a government will point out if I don't get to it. And that is that on the third day, an agent followed the truck to the scene. And while he was standing there trying to see it, the landlord came out of a nearby house and walked up to him. And the agent told the landlord, I want you to call me if you see the truck leave. And the agent testified that the landlord called him about an hour and a half before the fourth day where they made the bust. So we have evidence that the landlord called him. We don't know, again, why the landlord called him. We don't know if the landlord maintained 24 hours of bailout. It came out to the truck and left. Isn't that the only inference you can draw? Well, that's an inference. But I think you had to draw an assumption because again, the judge over my objections very carefully limited the testimony. The testimony was limited to the agent told him to call me and he did call me back. But I just wanted to point that out so the court doesn't think that I'm overlooking another fact. But if you take all those facts at trial, if a reasonable jury took all those facts at trial, knowing only what you now know that links him to that trial and with the mere presence instructions the judge gave, it doesn't support the conspiracy conviction. It's not enough to support it. There's just scant connection between him and what we call the Johnston County House. No property of his belonging to him was in the house. No money from the sales was there. He did drive the yellow truck which he didn't own. There's tons of evidence linking Pedro Arasco to the house. Who owned the truck? That didn't come out of trial in honor of somebody that was uncharged and not my client
. So what is the record? We don't know who owned it. We don't. We don't. We know he drove it regularly. He drove it certainly to those four sales. And he was convicted. I mean, obviously this evidence that he was involved in those. The overwhelming evidence that he distributed the drugs, overwhelming evidence of that. If I could, I'd like to move on to the two point enhancement for leadership. There's no evidence in this case of my client having any decision-making authority whatsoever. And this court and chambers pointed out the number of things which in fact the trial judge resided that sentencing. The nature of participation among those committing the offense. My client was clearly among the lowest rungs of the latter. He was the delivery man for the drugs. There's zero evidence of him recruiting any accomplices at the trial or the sentencing phase. There's zero evidence that he claimed a right to a greater share of the fruits of the crime. There's zero evidence of him planning or organizing anything. Although the judge on page 494 said he helped to lead the drug house, which is the hub of the activity, stating a conclusion, but not drawing it upon any facts to get to that. There is little proof of him having any control or authority over others. And the only reason I say little proof is because at sentencing again, some are not testified and said that my client basically got the oral lease on the house and his son made at least one payment. So arguably there's slight evidence that he exercised control. But my argument is that merely the fact that his son actually paid the rent once does not show us at all if he did that at my client's direction or not. So clearly there's insufficient evidence for the leadership enhancement. And now for the use of the minor, if I may turn to that issue, the plain language of the sentencing guidelines requires individualized consideration. In fact, it says the defendant doesn't say reasonably foreseeable or that during the course of the conduct, it occurred as the defendant used him. There is no record at all in this case of any affirmative action or any statement by Aaron. The defendant had an oral lease on the trailer and that there's evidence that he directed the son to make payments on it. Why wouldn't that be evidence? There's not evidence that he directed him to do it. There's evidence that the son in fact did make one payment. The others may have made payments as well. We don't know. But what I'm saying, Your Honor, is there's a gap. There's nothing that indicates my client had his son or told his son to make that payment
. He couldn't draw the inference that if he leased it and it was his son and his son made the payment and the son was a matter, that's not sufficient. That's right. Judge AGI would maintain respectfully that that's not enough to show that my client directed him to do that under the facts of this record. There's no record of any statement by my client directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting or soliciting the minor to commit any illegal act at all in this case or to participate in the conspiracy with Pedro or Rast or any others. And this, Your Honor, is not a status enhancement such as a special skill enhancement or anything like that. However, it appears that the trial judge did kind of create it into a status enhancement and punish my client more because of his status as this minor's parent and not because of any actions that my client took. I guess I'd like to reserve the rest of my time for a bottle. Thank you. Mr. Rogers. Good morning, ma'am. Please the court. This is Joshua Rogers again for the United States with respect to defendant's argument that the evidence was insufficient to convict the defendant. I think it's important that we bring up a fact that I noticed as rereading while rereading the record. And that is at J.A. 284 through 85. The AUSA brings up several exhibits, which are actually photographs of the defendant's room. And she asked, do you recognize the exhibits? I just showed you. She asked Agent Allen. He says, yes, ma'am. She says, what are those exhibits of? He says pictures of Aaron Gomez's room. There was no objection at that point. And in fact, if there was any question as to whether she was speaking about Aaron Gomez, the father, a couple of pages later in the transcript, the agent once again makes reference to the fact that these photographs are of Aaron Gomez's closet. And the Fence Council says objection, characterization. The court says overruled. You're talking about junior when you talk about that? Is that what you're talking about? The witness says no, sir. What pages that on? That is actually 284 of the J.A. So essentially, at one critical point in the trial, it came out that in fact that was defendant's room that had the cocaine, liquid cocaine. It had the drug paraphernalia cash. And so there is a direct link in the trial transcript between the defendant and his bedroom in that trailer. And if there's a direct link between him and the stash house, that makes for a pretty compelling case that when he was going back and forth to his home where the drugs were stashed in between counts two and five, the deals from counts two and five
. That in fact there was sufficient evidence with respect to the use of a minor enhancement. Again, although opposing counsel continually says there's no evidence that this father directed his son. That is a very narrow reading of the commentary to 3B1.4, which also includes encouraging and fester, which includes otherwise engaging. We absolutely have a father doing this. And we know that because most importantly, he brought him to live in the nerve center of this stash house where there was a serious manufacturing and distribution operation with the parenting again. No, I'm not talking about parenting. Did you say he bought him into the house? He lives there. We're arguing that bringing... Aren't you saying he lives there? You said he bought him and you said he lives there? Yes, Your Honor. We're not arguing that bad parenting equals use of a minor for the purposes of 3B1.4. What we're arguing... As a parent, he did that. What we're arguing is that bringing a child into a stash house, having him pay rent and letting him hang out and be a apprentice by drug dealers, constitutes encouragement and otherwise engaging and it just so happens to be bad parenting as well. You make an argument, but your argument then fit with the evidence. What is evidence that he directed him to pay the rent? The evidence, based on a proponent to the evidence standard, is that he was the one who was responsible for the lease. As it turns out, his son is also occasionally paying for the rent. That came out in the trial? That we're talking about sentencing. We're talking about the conspiracy. I thought you started off by the conspiracy. Well, I concluded my argument with respect to the sufficiency of the evidence and then I said with respect to the... The position just because the police officer said, looked at the picture and said, that's his room. We would argue that... That's what you only use side of the article
. Well, there's plenty of other evidence. I was just bringing up that particular point and then what I... Back to the... Subfissions to the evidence. First of all, the important thing is the standard, which is every reasonable inference goes to the United States. There was plenty more evidence in addition to the... Based on facts. Based on facts and the facts that we have in the record are that defendant lived in this bedroom, based... It tried when that... When that came out. That came out at J.A. 284-85 when the officer was asked, who's bedroom is this? Who are all these... These pictures come from what bedroom and it was the defendant's bedroom. Well, you just said it, but when was he there? Was he there a year ago? Was he there five years ago? You had to have some proximity even if you're going to use that blatant hearsay. No foundation for it. You said that's your evidence? If it was there the day of actually. He left that house on the way to his fourth deal. Okay, where's the evidence that somebody saw him in the house that could try? There is not actually evidence that someone saw him in the house. Where's evidence that someone saw him go in? There's actually evidence on page 190 of the record in which the detective Marbury argues.
.. I'm sorry. He went right though based on this record. It looked like that's what it was. Go ahead. I'm sorry. The detective didn't argue he testified. I went back up to the top of the road to see if defendant came back out. Now, he did not say he came in, but the reasonable inference from this is if he is waiting to see if he comes back out that he saw him come back. You don't have to do that. There's no evidence that he went in. My goodness, that is rank intellectual disturbing. Otherwise, he said, I didn't see him come out. Well, you can infer out what I saw him come in, but no evidence that he did. We're dealing with... We're talking beyond a reasonable down here. Are we? We're actually talking about evidence viewed in the light most favorable to the United States. What is this little inquiry in the standard that is beyond a reasonable down? Well, and as the defendant points out... I mean, can you answer that question? Is that right? Yes, Your Honor. All right. And if all those inferences you said that we must attribute to you, give you the best light, have to be based on facts, facts, and then reasonable inferences from facts. But the facts are, there's no evidence that you have to saw him in, go in, or come out of the trailer. We don't have to prove that he was in the trailer to prove that he had at least a tacit agreement with these Kochan Spiritors who did live there and who he was going back and force this place in between the drug deals that Constitupe counts two through five. Why, twice you say the truck was there. You see, to be if you observe and someone you would see him go in. We do have evidence that the officer says he did not come back out. So, in other words, the officer saw him come in. But again, whether he.
.. The officer saw him come in, but the trial wouldn't say that. They're not making a sense. Does that make any sense to you? To you. To you. I mean, you have a person of common sense and reasonable. You have learned it counsel. That's making a sense to you. Makes sense to me. It does. When someone's testing mine, they don't... Oh, good. No mind. Go ahead. I finish your argument then. That makes sense to you. Okay. So, in light of... Is there any... When the officer testified that the bedroom and the trailer belonged to the Aaron Sr. Was that... Was that evidence contested? At the sentencing hearing? No, a trial. In this..
. The 284-285, you said that was trial evidence, right? It was not objected to at that point. All right. So, what we have here is a defendant who is going to multiple control purchases. And he's going back and forth to a stash house that is chock full of cocaine, liquid cocaine, crack cocaine, where there are multiple firearms, and where we have a defendant who is repeatedly offering to introduce the confidential informant to his boss. So, he's indicating I've gotten agreement with somebody out there and I want you to meet this person. It's the United States argument if that's not sufficient evidence to satisfy the standard on appeal, then nothing else is. And we would also going back to the use of a minor, we do have a father who is most certainly encouraging his son... I'm sorry, but the evidence that he offered to introduce someone to his boss that goes to the conspiracy or to sentencing. It goes to the conspiracy as well. All right. I just want to follow. With respect to the use of a minor, again, that opposing counsel repeatedly brings up just one phrase from the sentencing guidelines and that is directing. The word encouraging is there too. When a father who brings his son in and happens to have behavior that's not only bad parenting but is also encouraging a minor to participate in the crime that's the charged offense here, brings him into a stash house where there are 10 kilos of cocaine total, where there are guns lying around everywhere and where he's being a prinous by a couple of brothers to participate in drug dealing. Most certainly that father has brought his son into a criminal situation where he'll be encouraged to participate and to use Judge Gregory's example. Bringing his son into the situation and claiming he didn't do anything to encourage him is absurd as him bringing a teenage daughter into a brothel and saying, I let her hang out with pimps, but it was up to her. She ended up being a prostitute as a shock to me. No, a parent who brings a child into this sort of situation is, in fact, creating a situation where the child's going to be encouraged to participate in a conspiracy. Alternatively, without going through all the arguments we just previously made, we would also argue that as this court has already found Pedro Gomez Aminaz was, in fact, responsible for affirmatively using this minor to crack cocaine. This defendant is also responsible under the theory of co-conspirator liability for doing so. With respect to the leadership enhancement, all that's needed in the court did cite this law is authority over at least one other person in the conspiracy. Or there needs to be proof that the defendant actively exercised authority over the operation or actively managed its activities. There is plenty of evidence here to support a reasonable inference that the defendant did have some leadership role over at least one person that would be his son. He led his son into the stash house to live there. The son had nowhere else to live, but he brings his son in there into a stash house where it's not like he's paying rent along with these others. He is the one who's responsible for the lease, and then he's having his son pay rent occasionally for him. Well, under that theory, then you would need any of the drive alongs and be in present. The fact that he lets his son live there would be enough under your theory. You just say that. It's not letting his son, he's leading his son. When you have a situation where you have a father's minor son, co-conspirator, that is going to be strong evidence of leadership. That's a totalitarian now. You know, you make it a conclusion already. Come on, let's get with the evidence. You're saying that the evidence is that he led him to the stash house. He lives there. Right? Exactly. That's what you call that's the engagement because he lives there with his father. We don't even know what his father is. But anyway, we actually do know that for the purposes of sentencing that this was his father. So he lives there. That's enough. Correct. To bring your son in there and then in addition to that, to have your son make rental payments on a drug stash house is most certainly taking. You have to pay rent where you live. Well, unfortunately, for the better. I don't know my reality is it, but you know, I guess I'm over when I grew up, you know, kids paid bills for their parents. I mean, a minute time you go down there, you got something on the railway, you go pay it. Because now everything is electronic, but kids did that. I would engage anything other than just paying rent. You're making societal. Cohabitation of people who are father and son into the elements of sufficient. This is if it's not a stranger. This is son. I'm not making it. It's the guidelines. When you lead a minor, this particular minor, you would or you have this unique dynamic between father and son into this particular conspiracy. And you're having him pay rental payments on a stash house. This isn't getting coke on lay away. Okay, this is a crime to live at a stash house. It isn't a crime to live in a stash house. However, there is an enhancement for a defendant who has his son pay rental. Let's think about steps. If there's no crime to live in a stash house, how is there a crime to have your child live in a stash house? We're not arguing that it's a crime to live in a stash house or a crime to have your child live there
. That's a totalitarian now. You know, you make it a conclusion already. Come on, let's get with the evidence. You're saying that the evidence is that he led him to the stash house. He lives there. Right? Exactly. That's what you call that's the engagement because he lives there with his father. We don't even know what his father is. But anyway, we actually do know that for the purposes of sentencing that this was his father. So he lives there. That's enough. Correct. To bring your son in there and then in addition to that, to have your son make rental payments on a drug stash house is most certainly taking. You have to pay rent where you live. Well, unfortunately, for the better. I don't know my reality is it, but you know, I guess I'm over when I grew up, you know, kids paid bills for their parents. I mean, a minute time you go down there, you got something on the railway, you go pay it. Because now everything is electronic, but kids did that. I would engage anything other than just paying rent. You're making societal. Cohabitation of people who are father and son into the elements of sufficient. This is if it's not a stranger. This is son. I'm not making it. It's the guidelines. When you lead a minor, this particular minor, you would or you have this unique dynamic between father and son into this particular conspiracy. And you're having him pay rental payments on a stash house. This isn't getting coke on lay away. Okay, this is a crime to live at a stash house. It isn't a crime to live in a stash house. However, there is an enhancement for a defendant who has his son pay rental. Let's think about steps. If there's no crime to live in a stash house, how is there a crime to have your child live in a stash house? We're not arguing that it's a crime to live in a stash house or a crime to have your child live there. What we're arguing is that there is an enhancement under the guidelines, which covers a defendant who would lead his child into a stash house and then have that child make rental payments. And if there's any question, whether this defendant has a superior role here, is that this trailer that he's renting, in fact, has numerous blocks of cocaine hidden in the walls and this confidential informant testified, you're the man if you have blocks, but if you're the middleman, you have dust because it's cut. Defendants, the man. And so what we're learning from this, from this particular confidential informant, the officers told him we need to find out if this guy has a superior role. So figure out if he's got any hard blocks on him. And if you configure that out, then we'll know if he's got a superior role in this conspiracy. And in fact, that's what we learned when they pull back the paneling and discover that there are multiple blocks hidden in the wall. And that's how we take leave of all jurisprudential sense when it comes to drugs. In other cases, we wouldn't dare say this is sufficient evidence. But when it's drugs, anything goes. You just confidential form when you talked about no evidence that he went in there. So basically, he could have stopped at any house for two days, didn't get out. And then if later you find out that house had drugs, and then that would be being conspired for that stash house too with it. Because he did stop there for an hour. Nobody saw him get out, but he stopped there. And later we find drugs that that's the evidence that trial. Well, I think that your honor is actually co-mingling the evidence from trial and sentencing actually sentencing. Because you started it because I was trying to get those silo because you said you're flipping back and forth. Now, let's put the switch down to trial conviction. Wouldn't that be the same thing if he was a drug dealer had four transactions. Okay. Two days with those four transactions, he stopped at a home. Never got out. Never saw him go in at all. But then later on you found that house had was chalk full of bricks of drugs. You said, oh, you're in the conspiracy because you had to have been in it. But wouldn't that the same theory you'd use it? No, your honor. Tell me how is it different from that high point? What we're arguing is in the context of sentencing, not no seed, then again, you're complaining. I'm talking about conviction for conspiracy. So we're you're asking questions about the sufficiency of the evidence. Yes. Okay. That's an important part because the rest of it doesn't matter
. What we're arguing is that there is an enhancement under the guidelines, which covers a defendant who would lead his child into a stash house and then have that child make rental payments. And if there's any question, whether this defendant has a superior role here, is that this trailer that he's renting, in fact, has numerous blocks of cocaine hidden in the walls and this confidential informant testified, you're the man if you have blocks, but if you're the middleman, you have dust because it's cut. Defendants, the man. And so what we're learning from this, from this particular confidential informant, the officers told him we need to find out if this guy has a superior role. So figure out if he's got any hard blocks on him. And if you configure that out, then we'll know if he's got a superior role in this conspiracy. And in fact, that's what we learned when they pull back the paneling and discover that there are multiple blocks hidden in the wall. And that's how we take leave of all jurisprudential sense when it comes to drugs. In other cases, we wouldn't dare say this is sufficient evidence. But when it's drugs, anything goes. You just confidential form when you talked about no evidence that he went in there. So basically, he could have stopped at any house for two days, didn't get out. And then if later you find out that house had drugs, and then that would be being conspired for that stash house too with it. Because he did stop there for an hour. Nobody saw him get out, but he stopped there. And later we find drugs that that's the evidence that trial. Well, I think that your honor is actually co-mingling the evidence from trial and sentencing actually sentencing. Because you started it because I was trying to get those silo because you said you're flipping back and forth. Now, let's put the switch down to trial conviction. Wouldn't that be the same thing if he was a drug dealer had four transactions. Okay. Two days with those four transactions, he stopped at a home. Never got out. Never saw him go in at all. But then later on you found that house had was chalk full of bricks of drugs. You said, oh, you're in the conspiracy because you had to have been in it. But wouldn't that the same theory you'd use it? No, your honor. Tell me how is it different from that high point? What we're arguing is in the context of sentencing, not no seed, then again, you're complaining. I'm talking about conviction for conspiracy. So we're you're asking questions about the sufficiency of the evidence. Yes. Okay. That's an important part because the rest of it doesn't matter. That would be moved if this if it's insufficient, all the sinuses and stuff. That's the first issue today. We are absolutely arguing that in fact, if we have a defendant who is going back and forth to control purchases and and in the course of those three different deals, right, is able to access a significant amount of drugs in the end. He says, look, I can get. No, he access. I don't know. He didn't already have what he needed in the truck. That's what I'm saying. How do you presume that he has the truck in all all four, correct? Yes, Your Honor. So what you do though that people do carry drugs in vehicles, right? Could we know that's all the stops on 95 that we get in the full circuit? People with tenant windows and don't know whether each one of them spent the night before they get stopped because the lights plates off skewer or it looked tenant windows or whatever. They go on five miles over the speed limit, all those stops. So we do know people carry drugs and cars vehicles, right? Yes, Your Honor. So where's the evidence that he needed to go into place other than the truck to get the drugs that for four, what like he had so much drugs that you need some other supply. Where's the evidence that he would need another source? You're a local location for source. I mean, what essentially answer that question, Counsel. Now I want you to go into this inferior jury argument. I want to answer the facts and a question. We cannot ignore where the defendant was going in between these deals. We cannot ignore what was inside of that particular location where he was going. And we can't question the jury simply based on high post like, well, what if he was sitting in the truck overnight? What if he actually didn't go inside? What if there was just chock full of drugs inside that truck? And what if he didn't have anything to do with the house? He did go to the house. The house was chock full of drugs. In fact, it was in between these deals. He was going. I do not agree with that. You may not agree with it, but that's the facts of the case. I thought there were pictures of his bedroom. As we've argued already, there were in fact pictures of his bedroom and it was identified as his bedroom. I suppose cross-examination could have come out if they wished to say, how do you know it was his bedroom? And he would say, well, my son told me or we found this or we found that. Or defense counsel certainly could have objected, but they did not. And so it came in that in fact that was his bedroom where all of those drugs and where all of that paraphernalia was and all that cash. What you found nothing that belonged to him in the bedroom. No, the bedroom was identified as his. In the trial? Yes, Your Honor, to a J
. That would be moved if this if it's insufficient, all the sinuses and stuff. That's the first issue today. We are absolutely arguing that in fact, if we have a defendant who is going back and forth to control purchases and and in the course of those three different deals, right, is able to access a significant amount of drugs in the end. He says, look, I can get. No, he access. I don't know. He didn't already have what he needed in the truck. That's what I'm saying. How do you presume that he has the truck in all all four, correct? Yes, Your Honor. So what you do though that people do carry drugs in vehicles, right? Could we know that's all the stops on 95 that we get in the full circuit? People with tenant windows and don't know whether each one of them spent the night before they get stopped because the lights plates off skewer or it looked tenant windows or whatever. They go on five miles over the speed limit, all those stops. So we do know people carry drugs and cars vehicles, right? Yes, Your Honor. So where's the evidence that he needed to go into place other than the truck to get the drugs that for four, what like he had so much drugs that you need some other supply. Where's the evidence that he would need another source? You're a local location for source. I mean, what essentially answer that question, Counsel. Now I want you to go into this inferior jury argument. I want to answer the facts and a question. We cannot ignore where the defendant was going in between these deals. We cannot ignore what was inside of that particular location where he was going. And we can't question the jury simply based on high post like, well, what if he was sitting in the truck overnight? What if he actually didn't go inside? What if there was just chock full of drugs inside that truck? And what if he didn't have anything to do with the house? He did go to the house. The house was chock full of drugs. In fact, it was in between these deals. He was going. I do not agree with that. You may not agree with it, but that's the facts of the case. I thought there were pictures of his bedroom. As we've argued already, there were in fact pictures of his bedroom and it was identified as his bedroom. I suppose cross-examination could have come out if they wished to say, how do you know it was his bedroom? And he would say, well, my son told me or we found this or we found that. Or defense counsel certainly could have objected, but they did not. And so it came in that in fact that was his bedroom where all of those drugs and where all of that paraphernalia was and all that cash. What you found nothing that belonged to him in the bedroom. No, the bedroom was identified as his. In the trial? Yes, Your Honor, to a J.A. 284. Oh, you mean it looked at a picture and said that without any basis for that? This wasn't just some man off the street. This was in fact the agent who investigated. So the agent was in certainly in the best position to say after our investigation, yes, this was the defendant's bedroom and they're inside. Because someone told him that? We don't know, but what we do know is defense counsel. You're right, you're even nowhere he got it from. What we do know above everything else is that... What government here don't you have a responsibility to somehow present cases with some level of fairness? We have a responsibility on appeal to bring... We do have a responsibility and we did meet that. That's probably that question shouldn't have been asked. I don't want to speak to whether... The lead out the rent received by the way you should get the rent. The question was simply that what were those exhibits of? It could have been pictures of a bedroom. The statement... The witness wasn't a legal expert. He made a response to the question. And what should have happened actually? What should have been done is defense counsel should have objected? They didn't. It's unfortunate for defendant. Why is he objected? Because... Think that and then asked on cross examination what's his basis for it? Well, either way..
.A. 284. Oh, you mean it looked at a picture and said that without any basis for that? This wasn't just some man off the street. This was in fact the agent who investigated. So the agent was in certainly in the best position to say after our investigation, yes, this was the defendant's bedroom and they're inside. Because someone told him that? We don't know, but what we do know is defense counsel. You're right, you're even nowhere he got it from. What we do know above everything else is that... What government here don't you have a responsibility to somehow present cases with some level of fairness? We have a responsibility on appeal to bring... We do have a responsibility and we did meet that. That's probably that question shouldn't have been asked. I don't want to speak to whether... The lead out the rent received by the way you should get the rent. The question was simply that what were those exhibits of? It could have been pictures of a bedroom. The statement... The witness wasn't a legal expert. He made a response to the question. And what should have happened actually? What should have been done is defense counsel should have objected? They didn't. It's unfortunate for defendant. Why is he objected? Because... Think that and then asked on cross examination what's his basis for it? Well, either way... I mean there's a... There's an unfathomable number of reasons why somebody can say this is his bedroom. Now he makes that bald statement. This is his bedroom. They have the receipt with his name on it. And we don't know this actually a trial that is sun-enticed the door. But he goes there in between transactions. Parks is truck in there. And is asked to be alerted when he comes back out and he's alerted. Now the question is... Is that enough evidence from a jury to conclude that that's his bedroom? Well, it's the only evidence. Absolutely. And in light of the standard of review, that is viewed in the light most favorable in the United States, there was absolutely plenty of evidence that satisfied the standard. And unless there are any further questions, I'll take my seat. Thank you, Mr. Rodgers. You said it shouldn't have been objected to. That question shouldn't have been objected to. Your Honor, regardless of whether it should have been, it came in. It should have been, shouldn't it? Don't you agree? Defense Council did object to it later. Success. But the first time it should have been objected to. I don't really feel like I'm in the position to critique them in this, with regard to whether or not it should have been objected to. You have to do that. You have to object to that. Because I would have to call for hearsay. Not necessarily. I mean, it.
. I mean there's a... There's an unfathomable number of reasons why somebody can say this is his bedroom. Now he makes that bald statement. This is his bedroom. They have the receipt with his name on it. And we don't know this actually a trial that is sun-enticed the door. But he goes there in between transactions. Parks is truck in there. And is asked to be alerted when he comes back out and he's alerted. Now the question is... Is that enough evidence from a jury to conclude that that's his bedroom? Well, it's the only evidence. Absolutely. And in light of the standard of review, that is viewed in the light most favorable in the United States, there was absolutely plenty of evidence that satisfied the standard. And unless there are any further questions, I'll take my seat. Thank you, Mr. Rodgers. You said it shouldn't have been objected to. That question shouldn't have been objected to. Your Honor, regardless of whether it should have been, it came in. It should have been, shouldn't it? Don't you agree? Defense Council did object to it later. Success. But the first time it should have been objected to. I don't really feel like I'm in the position to critique them in this, with regard to whether or not it should have been objected to. You have to do that. You have to object to that. Because I would have to call for hearsay. Not necessarily. I mean, it... hearsay. We don't even know if that was hearsay. If you objected, you would have to lay a foundation to get it beyond hearsay. But the first defensive hearsay certainly would prevail until you've laid a foundation otherwise. I mean, again, I think we're wondering... What did that? It may have, Your Honor, but what we're doing is wondering to conjecture that pulls us away from the standard of review here. And the fact that the United States did present sufficient evidence. And it didn't have to be hearsay. Okay. We'll hear from Mr. Gilbert. Thank, Your Honor. It appears the government has conceded harmful air in this case. Because they've relied very strongly in argument upon inadmissible evidence. The government says there was no objection. On page 286, the next page after 285, the court sustained my objection to the agent referring to those as coming from my client's room. So I did object. The judge granted it. It was inadmissible. The objection appears to go to the picture of a 9-millimeter carbine. No, it was the... Him calling it the room, Your Honor. I guess that depends on how you read the transcript. And where is the firearm located on the floor in the closet of Aaron Gomez's room? Objection, Your Honor. You're talking about junior when you talk about this? Is that what you're talking about? No, sir. All right. I'll abstain the objection, then. The jury will disregard that
.. hearsay. We don't even know if that was hearsay. If you objected, you would have to lay a foundation to get it beyond hearsay. But the first defensive hearsay certainly would prevail until you've laid a foundation otherwise. I mean, again, I think we're wondering... What did that? It may have, Your Honor, but what we're doing is wondering to conjecture that pulls us away from the standard of review here. And the fact that the United States did present sufficient evidence. And it didn't have to be hearsay. Okay. We'll hear from Mr. Gilbert. Thank, Your Honor. It appears the government has conceded harmful air in this case. Because they've relied very strongly in argument upon inadmissible evidence. The government says there was no objection. On page 286, the next page after 285, the court sustained my objection to the agent referring to those as coming from my client's room. So I did object. The judge granted it. It was inadmissible. The objection appears to go to the picture of a 9-millimeter carbine. No, it was the... Him calling it the room, Your Honor. I guess that depends on how you read the transcript. And where is the firearm located on the floor in the closet of Aaron Gomez's room? Objection, Your Honor. You're talking about junior when you talk about this? Is that what you're talking about? No, sir. All right. I'll abstain the objection, then. The jury will disregard that. So, Your Honor, I think it was clear at the trial that the trial court was not allowing them to put in that evidence. Also, Agent Chad Allen was the witness at that point. And Agent Allen testified in essence that he sat in the kitchen and collected items as people brought him in because he was responsible for the inventory of the collection of the evidence. And he, many times, on cross-examination, when asked about where things came from, said he didn't know. Basically, he recorded where he was told where things came from. But I think that that the judge did sustain our objections. We fought hard and long. Let me go back to what you just referred to. This on page 286. Yes, Your Honor. That's a reference to exhibit 90. Right? I'm sorry, I might have pulled the wrong page. Well, no, it says 90, a picture of a high point 9 millimeter carbide. Yes, sir. And that's what the objection is. But my, my, because that's the gun, evidence of the gun. Our objection was to the fact that he's claiming it came from Aaron Gomez's room, the closet. Not fair enough. But that's exhibit 90. Yes, sir. How many other pictures were there? Seven or eight? All admitted? Of which, Your Honor. Of the room. Identified as Gomez's room. Aaron's room. But none of them distinctly linked it to it. There were two different places where the government tried to name it. Follow me. On page 284, the government introduced a series of photographs, right? Yes, Your Honor. And they were admitted. And they were identified as Gomez's, I mean, Aaron's room. Yes, Your Honor. All right. Now, later, there's a one of the pictures shows a carbine in the closet
. So, Your Honor, I think it was clear at the trial that the trial court was not allowing them to put in that evidence. Also, Agent Chad Allen was the witness at that point. And Agent Allen testified in essence that he sat in the kitchen and collected items as people brought him in because he was responsible for the inventory of the collection of the evidence. And he, many times, on cross-examination, when asked about where things came from, said he didn't know. Basically, he recorded where he was told where things came from. But I think that that the judge did sustain our objections. We fought hard and long. Let me go back to what you just referred to. This on page 286. Yes, Your Honor. That's a reference to exhibit 90. Right? I'm sorry, I might have pulled the wrong page. Well, no, it says 90, a picture of a high point 9 millimeter carbide. Yes, sir. And that's what the objection is. But my, my, because that's the gun, evidence of the gun. Our objection was to the fact that he's claiming it came from Aaron Gomez's room, the closet. Not fair enough. But that's exhibit 90. Yes, sir. How many other pictures were there? Seven or eight? All admitted? Of which, Your Honor. Of the room. Identified as Gomez's room. Aaron's room. But none of them distinctly linked it to it. There were two different places where the government tried to name it. Follow me. On page 284, the government introduced a series of photographs, right? Yes, Your Honor. And they were admitted. And they were identified as Gomez's, I mean, Aaron's room. Yes, Your Honor. All right. Now, later, there's a one of the pictures shows a carbine in the closet. And you object to that. That's only, that's the scope of that discussion. It doesn't have anything to do with the other pictures. Well, right? We believe that our objection was timely. We tried to keep that. It's fair enough. You made an objection to 90 and the judge sustained it. With the characterization of it being from his room, that's what we were objecting to. We earlier objected and the judge also sustained our objection when we objected to them. The Gilbert, there is no way that this record can support a subjection to the others. It goes to exhibit 90. And that's specific. And it's showing it not, and the objection arises in connection with the demonstration of a gun in the picture. Isn't that right? That's correct. If I could, I'd like to address a judge, A.G.'s concern about Saviom Matute. I know that that was addressed in the previous argument. I'll take a minute for that. But I would just like to say that, you know, here's the way I read all the case law on that and the facts. There's no need for some talismanic incantation by a judge that they would have given the same sentence. However, if a judge gives a sentence that's above the guidelines and explains the variance and explains the reason it would have done that, then Saviom Matute is satisfied. The district court must give serious consideration to the extent of a departure or variance and must adequately explain the chosen sentence to allow meaningful, appellate review. In this case, this case is much like the Montes Flores case that I think Judge A.G. brought up in the previous argument. But pages 512 to 519 address the sentencing aspect where the judge said the alternative sentence. And the judge recited the 3553 A factors. He highlighted the reasons why he thought the criminal history created a different United States sentencing guideline range from the co-dependence. The district court judge never addressed the topic at all. I'm sorry, Aaron. The other case that was brought up Montes Flores and Raste's case, the district court judge in that case never addressed the variance sentence and the alternative at all. It's not wasn't in the record anywhere
. And you object to that. That's only, that's the scope of that discussion. It doesn't have anything to do with the other pictures. Well, right? We believe that our objection was timely. We tried to keep that. It's fair enough. You made an objection to 90 and the judge sustained it. With the characterization of it being from his room, that's what we were objecting to. We earlier objected and the judge also sustained our objection when we objected to them. The Gilbert, there is no way that this record can support a subjection to the others. It goes to exhibit 90. And that's specific. And it's showing it not, and the objection arises in connection with the demonstration of a gun in the picture. Isn't that right? That's correct. If I could, I'd like to address a judge, A.G.'s concern about Saviom Matute. I know that that was addressed in the previous argument. I'll take a minute for that. But I would just like to say that, you know, here's the way I read all the case law on that and the facts. There's no need for some talismanic incantation by a judge that they would have given the same sentence. However, if a judge gives a sentence that's above the guidelines and explains the variance and explains the reason it would have done that, then Saviom Matute is satisfied. The district court must give serious consideration to the extent of a departure or variance and must adequately explain the chosen sentence to allow meaningful, appellate review. In this case, this case is much like the Montes Flores case that I think Judge A.G. brought up in the previous argument. But pages 512 to 519 address the sentencing aspect where the judge said the alternative sentence. And the judge recited the 3553 A factors. He highlighted the reasons why he thought the criminal history created a different United States sentencing guideline range from the co-dependence. The district court judge never addressed the topic at all. I'm sorry, Aaron. The other case that was brought up Montes Flores and Raste's case, the district court judge in that case never addressed the variance sentence and the alternative at all. It's not wasn't in the record anywhere. Yes, Judge A.G. and in my case, there wasn't a variance. In my case, it was also a guideline sentence. What Judge Devar did is he recited the factors. And then he specifically highlighted the reasons why he thought the criminal history was significant. And he cited the need to protect the public and then his desire to basically punish my client for the rest of his life for dealing drugs. But in comparison to the case that the 28J letter was filed on in a Raste's case, the two are completely factually different. Yes, I mean, you have no record in the other case Montes Flores. You do have a record here. Well, I respectfully. You can raise a legal question as to whether or not that's adequate. But I don't think the Montes Flores gives you any help at all. The bottom line, I think, is whether a new sentence scene would be productive. It's a pragmatic question. And it seems to me the district judge in this case was basically saying I'm trying to avoid the necessity of a new sentence scene because under a new sentence scene with those factors taken out, I would arrive at the same place. And the questions, whether we believe them. Yes, sir. And whether you can, if you can elicit enough explanation, is essence what I wanted to say. Could I just point one other thing about the conspiracy? You're pretty far behind the red light. You know, soon you get a ticket. But go ahead. Oh, I'm sorry. Basically, with respect to conspiracy in the Hacley case, which came out in 2011, this court said, you know, that was an outer limits case finding a conspiracy. A fellow referred to his family in Maryland, and they found that that was barely enough to tie him to it. In this case, we have bicell transactions. We have no evidence of continuing relationships between my client and Pedro and Arasto. And we just have repeated transactions between my client and the... That's not quite accurate because Pedro and Arasto were living in the house, cooking crack and involving the son of Aaron. And they're all in the same house. They all operating from the same point of point
. But if we go back to the trial phase, again, your honor, with the evidence there, the only evidence is repeated transactions by my client with the cooperating informant, who's a government agent. And again, the vehicle being seen at the house. So for those reasons, I asked the court to reverse the conspiracy conviction. All right. We'll come down in a Greek council and then proceed on to the last case