We're ready to hear argument in our first case United States versus Zayad, Mr. Carpenter. We're glad to hear from you. Thank you, Judge A.G. May it please the court? Our argument here is based on the following principle. When the government relies on nothing more than a chain of inferences to support an element of its case, a defendant must be permitted to introduce evidence that rebutts one of the links in that chain. Under that principle, the district court here committed a reversible error by excluding the gray market evidence from the second trial in this case. When that evidence came in at the first trial, the government didn't object, but then the jury raised questions about knowledge and was ultimately unable to reach a verdict. It was only after this adverse outcome that the government first moved to exclude this evidence. This evidence was critical to Mr. Zayad's defense as the government learned during the first trial because of the way the government itself sought to prove the knowledge element in this case. The government admits now and admitted at trial that it lacks any direct evidence that Mr. Zayad knew these pills were counterfeit. The Renault inculpatory statements made during the recorded conversations or on his arrest. There were no emails, texts, or other documentary evidence indicating his knowledge. Absent that type of evidence, the government had to prove its case circumstantially by asking the jury to infer that simply because Mr
. Zayad was selling these pills illicitly on the underground market, he must have known that they were counterfeit. But the problem with that theory is that not all pills sold illicitly on the underground market are counterfeit. Some of them, as the gray market evidence established, were. The court was making its bench ruling. It identified two issues. The first being what you described, whether or not these items were counterfeit. The second was the defendant's knowledge. The course of the argument, I don't know whether you were counseled below or not. I don't see any place where Mr. Zayad raised the issue of knowledge as a basis for being allowed to conduct this cross-examination. So the question arises is whether or not that issue is waived because the issue of knowledge was never raised. If it was, you can tell us where it was. Certainly, Judge A. G., I think it was raised and sufficiently preserved. And I think that arises from the eliminate filings themselves
. If you look at the government's motion, it's a joint appendix, page 578-571. That motion concedes the connection here to between the gray market evidence and the defendant's knowledge. The government writes in its motion the only potential relevance of this evidence may arise if the defendant were to testify during the defense case regarding his state of mind. In that case, it says the questioning of the company representatives on this gray market issue would be relevant. So the connection between gray market evidence and knowledge is conceded by the government. When we were applied to that- I'm guessing that when the government gets up here, it's going to say that that was a condition presegant or something of that effect that was never met. And that it was incumbent upon you or counsel representing Mr. Zayad in the trial court to have raised that issue on your own. Well, Judge A. G., when we responded to that, we made clear that our view is that the condition precedent is impermissible in this case. There's no support in the rules of evidence or in the case along anywhere that the admission of otherwise relevant evidence can be conditioned on a defendant's decision to waive his constitutional right not to testify. But that's the problem. It's not relevant unless there's a sufficient foundation for allowing the evidence to come in to begin with. Well, Judge A. G
., I think that's not correct under rule 401. If you look at the rules, you know, that's the relevancy rule in the federal rules. And it doesn't require a conclusive showing as to a particular, as to a disputed issue. It says that a piece of evidence can come in if it makes the resolution of the disputed issue, which in this case is Mr. Zayad's knowledge more or less probable. And here, that standard is satisfied because if you know that some genuine authentic pills are diverted from the traditional supply chain and are sold illicitly on the underground market. Who's the you? The jury. Well, the foundation that I'm talking about is not jury in the abstract, but your client. Your client has to know that. Well, that's certainly true, but the jury can draw that inference. But they'd be speculating if they didn't judge the as they're speculating on the other end. We're dealing with a case where there is no direct knowledge here or no direct evidence of knowledge. We're dealing with a battle of the inferences. Right, but the inferences that the government raised in their case were at least reasonable inferences that were logically connected. The problem with this evidence is that there's no connection to the defendant to show that in fact, he understood that there was a gray market to begin with. So how in the world can a jury reasonably infer? I understand that they had some questions in the first trial about that issue
. That doesn't make that a reasonable question or reasonable inference. Well, just yes. I think that it's actually a parallel inference here. And you suggested that there was some connection between the government's evidence and the defendant, but that's not right. The way the government went about. If that wasn't right, then I guess there should have been a motion to eliminate to exclude that evidence, but there wasn't. Was there? Well, there wasn't a motion to exclude it because it's relevant under 401. Now, there was a motion under Rule 29 to say that that evidence wasn't sufficient to get you all the way there, but it's certainly relevant. Let's give you that there wasn't a business discretion under 401. What do you do with the 403 ruling? By the judge. Sure. Judge Floyd, Rule 403, the court does have some discretion under that, but this court is recognized repeatedly that Rule 403 tilts in favor of inclusion of evidence rather than exclusion. So if you look at the balance in this case, the probative value of this evidence is high because as I said, there is no direct evidence here. We're dealing with a battle of inferences. And so that the probative value is high. On the other side of the equation, Judge Conrad cited the potential for juror confusion or the potential for a waste of time, but those factors are belied by the first, the record of the first trial
. The jury wasn't confused. It raised specific questions about knowledge and that was precisely the issue it should have been focused on because that's where there was a lack of evidence here. But the trial judge only limited the cross examination in the government's case in chief. You weren't hog tied in support of calling witnesses, even the same witnesses that testified in the government's case in the defense case. Well, just with that your client hadn't testified. It is true that our client could have testified and that at that point, based on the premise of the government's motion, the additional evidence could have come in. But our view first is that there's a due process problem with conditioning otherwise relevant evidence on a defendant's waiver of his constitutional right not to testify. What if I'm great? Well, I'm saying you could have called the pharmaceutical witnesses without having to call your witness in your case. Judge Floyd, if we had called those same witnesses up and sought to ask in the same question, Judge Conrad would have said, I've already decided this issue. That evidence isn't relevant. And Lawson until Mr. Zaya himself testifies us to a state of mind. Delaying on that, I mean, all you had to do is make a, not you, generically would be to make a proffer on that and preserve that for appeal. As Judge Floyd has indicated, that was, that was your option. And I thought that Judge Conrad had indicated that he would consider that. I don't believe he indicated that he would consider that
. And he's there certainly no indication that he would have considered admitting this evidence short of Mr. Zaya testifying. And imposing that condition, we believe violates due process. If there had been some other way to get evidence of your client's knowledge of a great market as the foundation, we wouldn't have this argument here today. That's probably right. But no one disputes. There is no direct evidence as to his knowledge. I'm not sure about that. I mean, I don't know that there were, I don't know exactly what avenues were explored. And the government sort of, that was their initial thrusts is that it required your client to testify. But in their brief, they suggest some other methods for introducing evidence that would have shown knowledge or at least inferred knowledge. Well, first, that's, that deviates from their position at trial, which was the only way to get this in is through his own testimony. But the court can rest assured, if there were evidence either way as to his knowledge or awareness, either in-calfatory or ex-calfatory, one of the parties would have introduced it. But we're dealing with the situation where there is no direct evidence. So we have to deal, the jury has to make an inference. I don't know if we know that
. I mean, the, you certain, there could have been a proffer as to this is how we're going to prove knowledge. And it may well have been a trial decision or no decision that, well, we can't, we don't want to pursue this because the risk of putting on this particular witness other than the defendant to prove knowledge, would just open up too many cans of worms and it's not worth the risk. We don't know any of those things because none of that's in the record. But had there been a proffer with regard to knowledge, we would be able to evaluate it now. Well, it's certainly true that had there been evidence, the defendant could have sought to, to do it. But regardless, the record we're dealing with is one in which there is no evidence either way. And so to go back to a point that Judge Diaz raised a minute ago about whether the government's evidence somehow tied to Mr. Zaya's knowledge, I think it doesn't. And that's why we're dealing with inferences that are equally reasonable here. Because the way the government sought to prove knowledge in this case, it introduced expert testimony from the folks at Pfizer and Eli Lilly to say, in the traditional supply chain, this is how pills are distributed. They come in bottles that are sent to wholesalers that have lot numbers that are, and that are accompanied by literature about the warnings and, et cetera. And then it said, on the other hand, Mr. Zaya was distributing these pills illicitly on the underground market. Therefore, it asked the jury to infer first that Mr. Zaya was aware that pills were distributed a certain way in the regular distribution chain. There was no evidence, direct evidence of his knowledge
. So if the government's foundation theory were correct, it lacks foundation for its own theory because they show nothing other than an inference that ties Mr. Zaya's knowledge that shows Mr. Zaya has having knowledge of how the regular distribution chain works. Our view is that if they can show how the regular distribution chain works, we should be able to introduce evidence that says in certain circumstances, both of these companies have had problems where genuine pills are diverted from that intended supply chain and are distributed illicitly on the underground market in a way that looks exactly the same way that these counterfeit pills are distributed. Once you know that, then the jury is asked to infer, well, do we think Mr. Zaya believed that the pills were counterfeit or do we think he believed that they were real? Because there are two options. The pills that are distributed underground in the same way that he distributed them can be real, they can be counterfeit. The government had to prove beyond a reasonable doubt that Mr. Zaya knew they were counterfeit. And it didn't do that. The government could have sought a lesser charge here. It could have sought a mis-branding charge based simply on the fact that these pills were prescription pills that were distributed without a prescription. But that's a lesser charge. It's a misdemeanor and it doesn't require knowledge that the pills were counterfeit. Had the government sought that lesser charge, it would have been a able to show knowledge that the pills were counterfeit. In our view, the evidence doesn't support that and he should have been able to introduce the rebuttal evidence that undermined the government's theory of the case
. I reserve my last 10 seconds. Thank you. But you've got some more time for rebuttal. Thank you. Thank you very much. Mr. Lieberman. Mr. Lieberman, why don't you start with that last point that the council made that the government in this case was relying on equally speculative inferences to arrive at a guilty verdict? May I please the court, Your Honor? Yes. The government's evidence in this case was circumstantial as to knowledge. But all of the facts rested on things that were indisputably within Mr. Zayyad's mind at the time because they all related to his own actions, what he was doing in 2010. So our case for knowledge rested on the fact that Mr. Zayyad was receiving these pills from a Chicago supplier who had subsequently been arrested hundreds of these pills, transporting them in the dead of night to a convenience store in Ziploc bagged and gas station paper towels. The pills were differently colored, different shades of yellow and blue, and that they were being sold at a rate significantly below what genuine Viagra, genuine Cialis would fetch in this country. So all of those facts were unquestionably within Mr
. Zayyad's mind because they all related to his own actions. Now compare the government's case to the questions that Defense Council wanted to ask of the government's witnesses during cross-examination. The excerpts of these are found at pages 574 through 645 of the joint dependix. Defense Council wanted to ask the Pfizer witness about the Mexican nationals working at the Mexico plant. How do you know whether these foreign employees didn't actually divert the pills? He wanted to ask about quality control issues at the Saudi Arabian plant. How often are you doing inspections? Who is doing background checks of your plant managers at your Japanese plant? And what about DHL workers? Is there a possibility that they could be diverting the pills before they get on the plane and ship it around to wherever the destination is? The problem with those questions is that the facts that Defense Council was trying to elicit have no obvious connection to what was going around in Mr. Zayyad's mind in 2010. Was he thinking about the Mexico plant or the Saudi Arabia plant when he was trafficking these pills in around Charlotte? Perhaps that connection could have been made. But the problem here is that it wasn't and that's why the district court appropriately excluded this evidence. Because again when we're thinking about when the jury's asked what was in the defendant's mind? They can't crack open his head. They have to rely on inferences. But those are only going to be the facts, the information, and the events that are within Mr. Zayyad's head at the time. Everything else is irrelevant. And this is why I think some of the tax evasion cases that the government cited to on pages 18 through 20 over a brief are relevant because in those cases the jury was asked was the defendant willfully mistating his income on a tax return? So an event that occurred after he filled out the tax return irrelevant. What somebody else thought about the disputed monies in that case irrelevant? The district court appropriately excluded those in those cases. The district court here did as well. There was a willful blindness charge. There was your runner. And I think that's relevant because at least it's to the sufficiency point. It's because even though the government didn't have the smoking gun in this case, the jury was allowed to line up inferences from Mr. Zayyad's undisputed actions and say well in light of everything that we have before it was Mr. Zayyad deliberately blind to the fact before him. And I think that was a reasonable inference in this case given both how he was distributing the pills. And remember this is a convenience store that is selling over the countertile and all and ad-vill in packages. And these pills were coming in Ziploc bags and gas station paper towels and they were differently colored. All things that he would have seen. And so I think on the sufficiency point, we easily clear that very minimal hurdle. Going back to the evidentiary question, your honor asked about the rule 403 point. So the government does not concede that this evidence has any properative value. But even if it did, I don't think Mr. Zayyad can show an abusive discretion in the rule 403 balancing
. The district court here did as well. There was a willful blindness charge. There was your runner. And I think that's relevant because at least it's to the sufficiency point. It's because even though the government didn't have the smoking gun in this case, the jury was allowed to line up inferences from Mr. Zayyad's undisputed actions and say well in light of everything that we have before it was Mr. Zayyad deliberately blind to the fact before him. And I think that was a reasonable inference in this case given both how he was distributing the pills. And remember this is a convenience store that is selling over the countertile and all and ad-vill in packages. And these pills were coming in Ziploc bags and gas station paper towels and they were differently colored. All things that he would have seen. And so I think on the sufficiency point, we easily clear that very minimal hurdle. Going back to the evidentiary question, your honor asked about the rule 403 point. So the government does not concede that this evidence has any properative value. But even if it did, I don't think Mr. Zayyad can show an abusive discretion in the rule 403 balancing. Because all of the questions that Defense Council was asking about, you know, this background checks of the Japanese workers, Saudi Arabia, quality control measures, you know, asking the jury to inquire into those things seems at least to me to be far a field of the question that the jury instructions asked it to decide what was going on in Mr. Zayyad's mind. And as a result, no abusive discretion in that 403 balancing. The last point on the merits is I just want to emphasize how narrow the district court's ruling was. Page 660 of the Joint Dependings. I'll prohibit the defendant from cross examining with respect to the gray market. And that flowed from an equally narrow motion in limiting. Page 571 of the Joint Dependings. The government only asked for an order directing defense council to refrain from attempting to raise during the government's case and chief the issue of the gray market. So Mr. Lieberman, if the only way for the defendant in this case to make that necessary connection that the government felt was required was through his testimony, do we have a problem? Well, I disagree with that. Well, let's say that's the case. Do we have a problem? No, because this is a this is a pure fact. Was there an adequate factual foundation to establish what was going on inside his mind? And the fact that the only way that he could have presented that foundation or connection would be through his trial testimony presents no due process concern. If that's the only evidence available to the defendant, I think it's a straight line evidentiary issue, not a due process problem. But first of all, I disagree with my friend on the other side's reading of the government's motion and limine, we offered up the example of the defendant testifying, I think, as an illustrative example, so how he could lay the foundation
. Because all of the questions that Defense Council was asking about, you know, this background checks of the Japanese workers, Saudi Arabia, quality control measures, you know, asking the jury to inquire into those things seems at least to me to be far a field of the question that the jury instructions asked it to decide what was going on in Mr. Zayyad's mind. And as a result, no abusive discretion in that 403 balancing. The last point on the merits is I just want to emphasize how narrow the district court's ruling was. Page 660 of the Joint Dependings. I'll prohibit the defendant from cross examining with respect to the gray market. And that flowed from an equally narrow motion in limiting. Page 571 of the Joint Dependings. The government only asked for an order directing defense council to refrain from attempting to raise during the government's case and chief the issue of the gray market. So Mr. Lieberman, if the only way for the defendant in this case to make that necessary connection that the government felt was required was through his testimony, do we have a problem? Well, I disagree with that. Well, let's say that's the case. Do we have a problem? No, because this is a this is a pure fact. Was there an adequate factual foundation to establish what was going on inside his mind? And the fact that the only way that he could have presented that foundation or connection would be through his trial testimony presents no due process concern. If that's the only evidence available to the defendant, I think it's a straight line evidentiary issue, not a due process problem. But first of all, I disagree with my friend on the other side's reading of the government's motion and limine, we offered up the example of the defendant testifying, I think, as an illustrative example, so how he could lay the foundation. But there are other ways that he could have done so. Perhaps he could have called his Chicago supplier to in the Chicago supplier would have offered testimony about what he told Mr. Ziya. And maybe some of those statements would have been illustrative of what may have been going on in Mr. Ziya's state of mind at the time. If the Chicago supplier said, I told him he, these were authentic, they were genuine pills. That may be sufficient to lay the foundation. You know, maybe the Mr. Alasmer, the convenience store manager could have offered similar testimony. And as the government posited in our brief, you know, communications invoices anything else that may be available. So it's not the case that Mr. Ziya had only one way to do this. Now the problem here is I just don't think that evidence existed in this case, but that's an evidentiary problem. But going back to the narrowness of the court's order, it only pertained to cross-examination. Once the government rested its case, the order had no effect. This goes to a point the judge Floyd made
. But there are other ways that he could have done so. Perhaps he could have called his Chicago supplier to in the Chicago supplier would have offered testimony about what he told Mr. Ziya. And maybe some of those statements would have been illustrative of what may have been going on in Mr. Ziya's state of mind at the time. If the Chicago supplier said, I told him he, these were authentic, they were genuine pills. That may be sufficient to lay the foundation. You know, maybe the Mr. Alasmer, the convenience store manager could have offered similar testimony. And as the government posited in our brief, you know, communications invoices anything else that may be available. So it's not the case that Mr. Ziya had only one way to do this. Now the problem here is I just don't think that evidence existed in this case, but that's an evidentiary problem. But going back to the narrowness of the court's order, it only pertained to cross-examination. Once the government rested its case, the order had no effect. This goes to a point the judge Floyd made. Under the terms of the district court's order, Mr. Ziya could have called any witness he wanted, could have elicited any testimony he wanted, could have presented any fact he wanted, about the gray market without having to testify without running a file of the district court's order. And that is critical, both on the merits, because this court traditionally affords tremendous deference to district courts and how to structure their proceedings. And all that this lemonade ruling did was channel the gray market issue from the first half of the case to the second half of the day. But you think that if the defendant had called these witnesses without making that connection that we just talked about earlier, that Judge Conrad would have allowed that testimony? It's perhaps that he perhaps the AOSA would have objected. Perhaps Judge Conrad would have issued a second ruling now restricting this evidence in Toto. And then we'd have a different case. I think they're happy to defend that case. I think they're good arguments to defend that type of order. But that's not the order that's under review before this court. The order under review before this court is much more circumscribed. It only pertained to the government's cross-examination, and that's only the government's motion and the only asked for that relief. And so that cannot be an abusive discussion given this court's traditional deference to district courts' ability to manage their proceedings. It's also relevant on the government's last argument, which is the harmlessness point, under either Rule 403 or a plain error type standard, which we think is the more appropriate one here. This court may not reverse unless it finds that the district courts ruling impaired Mr. Zayat's substantial rights
. Under the terms of the district court's order, Mr. Ziya could have called any witness he wanted, could have elicited any testimony he wanted, could have presented any fact he wanted, about the gray market without having to testify without running a file of the district court's order. And that is critical, both on the merits, because this court traditionally affords tremendous deference to district courts and how to structure their proceedings. And all that this lemonade ruling did was channel the gray market issue from the first half of the case to the second half of the day. But you think that if the defendant had called these witnesses without making that connection that we just talked about earlier, that Judge Conrad would have allowed that testimony? It's perhaps that he perhaps the AOSA would have objected. Perhaps Judge Conrad would have issued a second ruling now restricting this evidence in Toto. And then we'd have a different case. I think they're happy to defend that case. I think they're good arguments to defend that type of order. But that's not the order that's under review before this court. The order under review before this court is much more circumscribed. It only pertained to the government's cross-examination, and that's only the government's motion and the only asked for that relief. And so that cannot be an abusive discussion given this court's traditional deference to district courts' ability to manage their proceedings. It's also relevant on the government's last argument, which is the harmlessness point, under either Rule 403 or a plain error type standard, which we think is the more appropriate one here. This court may not reverse unless it finds that the district courts ruling impaired Mr. Zayat's substantial rights. The rights that Mr. Zayat is claiming here is the right to present a defense, his lack of knowledge, and the right to advance evidence and support of that defense. Again, under the terms of the district courts ruling, he could have done all that in the defense case in chief. Now, the defense did not do that here, but that was a choice of the defense, not the result of the district court's order. So there is no way possibly to show any impingement, Mr. Zayat's right to present a defense, or his right to present evidence in support of that defense. Go back to the standard review. What do you think the standard review is? Well, we think that plain error is appropriate here. For many of the reasons that Judge A.G. started this, his questions, because if you look at the response to the government's motion and eliminate 651 through 653, there's no discussion of knowledge. There's no mention of tying the issue of knowledge back to this line of cross-examination that Mr. Zayat wanted to present. And the district court isn't entitled to look at those pleadings, and accept Mr. Zayat's representation that the one reason why we think that this line of questioning is admissible is on the basis of are these pills actually counterfeit or genuine? It was incumbent on Mr. Zayat to inform the district court of this alternative basis of relevance, because this court has said many times over and over again that preservation of one ground of it, misimmility, will not preserve an alternative ground
. The rights that Mr. Zayat is claiming here is the right to present a defense, his lack of knowledge, and the right to advance evidence and support of that defense. Again, under the terms of the district courts ruling, he could have done all that in the defense case in chief. Now, the defense did not do that here, but that was a choice of the defense, not the result of the district court's order. So there is no way possibly to show any impingement, Mr. Zayat's right to present a defense, or his right to present evidence in support of that defense. Go back to the standard review. What do you think the standard review is? Well, we think that plain error is appropriate here. For many of the reasons that Judge A.G. started this, his questions, because if you look at the response to the government's motion and eliminate 651 through 653, there's no discussion of knowledge. There's no mention of tying the issue of knowledge back to this line of cross-examination that Mr. Zayat wanted to present. And the district court isn't entitled to look at those pleadings, and accept Mr. Zayat's representation that the one reason why we think that this line of questioning is admissible is on the basis of are these pills actually counterfeit or genuine? It was incumbent on Mr. Zayat to inform the district court of this alternative basis of relevance, because this court has said many times over and over again that preservation of one ground of it, misimmility, will not preserve an alternative ground. And I know that the briefs on the other side mentioned that knowledge was an issue in the first trial and in the second trial, but that Judge Conrad does not require to flip through the transcript and hypothesize other bases for admissibility. The district court judges entitled to look at the defense pleadings and accept the defense arguments on their face. And I think if this court reads those that three or four page motion, it will struggle to find the issue of knowledge mentioned. I think under rule 103 that is not an adequate there's not been an adequate preservation of this grounds for admissibility, and we are here under plain error. So whether it's under plain error or on the merits or on this final harmless at this point, I think this court should affirm. I'm happy to address any more questions, but otherwise again we'd ask that court affirm. Thank you. Thank you very much. Mr. Farfinter, you've got some time in the rebuttal if you wish to do so. Thank you. One of the response to a few things. First, on the question of whether something short of Mr. Zayyad's testimony would have been enough to open the door, so to speak, to this testimony, the government's position now is that he could have introduced these other witnesses that could have talked about his, you know, about their interactions with him to establish a connection. The problem is in the government's in Liminei motion, at page 571, footnote 7, the government expressly addresses this issue and says that that's not sufficient. Says the defendant may seek to put on hearsay evidence through others regarding his ex-Sculptory claim that he believed he was dealing in genuine prescription pills
. And I know that the briefs on the other side mentioned that knowledge was an issue in the first trial and in the second trial, but that Judge Conrad does not require to flip through the transcript and hypothesize other bases for admissibility. The district court judges entitled to look at the defense pleadings and accept the defense arguments on their face. And I think if this court reads those that three or four page motion, it will struggle to find the issue of knowledge mentioned. I think under rule 103 that is not an adequate there's not been an adequate preservation of this grounds for admissibility, and we are here under plain error. So whether it's under plain error or on the merits or on this final harmless at this point, I think this court should affirm. I'm happy to address any more questions, but otherwise again we'd ask that court affirm. Thank you. Thank you very much. Mr. Farfinter, you've got some time in the rebuttal if you wish to do so. Thank you. One of the response to a few things. First, on the question of whether something short of Mr. Zayyad's testimony would have been enough to open the door, so to speak, to this testimony, the government's position now is that he could have introduced these other witnesses that could have talked about his, you know, about their interactions with him to establish a connection. The problem is in the government's in Liminei motion, at page 571, footnote 7, the government expressly addresses this issue and says that that's not sufficient. Says the defendant may seek to put on hearsay evidence through others regarding his ex-Sculptory claim that he believed he was dealing in genuine prescription pills. Such ex-Sculptory evidence is inadmissible hearsay that should be excluded. The government's very clear position in the trial court, which Judge Conrad endorsed, was that the only way to get this evidence in is for Mr. Zayyad to first testify. How did, I'm sorry. How did Judge Conrad endorse that view? He said that joint-appended page 660, I grant the government's motion in Liminei. There is no mercy. That doesn't bind the, I mean, that even, that footnote doesn't bind the defense to their evidentiary presentation. It doesn't limit them in any way at, I don't get that. Well, I think it certainly does because the premise of the government's motion is that the only way to get this in is if he first testifies anything to the premise, but then it's up to the defense to challenge that premise. Well, and the defendant challenged that in its response in the Liminei motion when it said, look, this, and that's the other point that my colleague just finished with, which is that you have to accept the arguments in the eliminate filings on their face. Well, the government says this relevant, this evidence is relevant to knowledge, but only if he testifies. In our response, we said there's a connection to knowledge. You certainly, I mean, this is probably unlikely, but take the supplier in Chicago or whatever city that person was in, in the unlikely event that you could convince them to come down and testify. It's not inconceivable that their testimony would be an admission against penal interest, which would be an exception to the hearsay rule. And you could have argued just as an example for that. So I mean, it's not that there weren't other possibilities
. Such ex-Sculptory evidence is inadmissible hearsay that should be excluded. The government's very clear position in the trial court, which Judge Conrad endorsed, was that the only way to get this evidence in is for Mr. Zayyad to first testify. How did, I'm sorry. How did Judge Conrad endorse that view? He said that joint-appended page 660, I grant the government's motion in Liminei. There is no mercy. That doesn't bind the, I mean, that even, that footnote doesn't bind the defense to their evidentiary presentation. It doesn't limit them in any way at, I don't get that. Well, I think it certainly does because the premise of the government's motion is that the only way to get this in is if he first testifies anything to the premise, but then it's up to the defense to challenge that premise. Well, and the defendant challenged that in its response in the Liminei motion when it said, look, this, and that's the other point that my colleague just finished with, which is that you have to accept the arguments in the eliminate filings on their face. Well, the government says this relevant, this evidence is relevant to knowledge, but only if he testifies. In our response, we said there's a connection to knowledge. You certainly, I mean, this is probably unlikely, but take the supplier in Chicago or whatever city that person was in, in the unlikely event that you could convince them to come down and testify. It's not inconceivable that their testimony would be an admission against penal interest, which would be an exception to the hearsay rule. And you could have argued just as an example for that. So I mean, it's not that there weren't other possibilities. We don't know what they were. Judge IG absolutely agree. If there were other evidence available, then we might be dealing with those additional issues. But they're present in this record where we have only, we have only what we have. There wasn't this additional evidence out there. And we have the government's motion, which was endorsed again by the district court. And I think the premise of that in the rationale where the district course ruling was clear, my colleague, the other side mentioned that, well, this is within the district course discretion in managing the case that you could have moved it from cross examination to the defense case. That's certainly true. The district court does have discretion in managing his case. But that's not what happened here. The premise of Judge Conrad's ruling and of the government's motion was not this evidence is, you know, more appropriate during the defense case. It was this evidence is irrelevant. If the evidence is irrelevant during the case, during cross examination, it's irrelevant during the defense case as well. This was not an exercise of the course discretion to manage when evidence comes in. And that makes sense because this evidence was within the scope of the direct examination, which is exactly what cross examination is supposed to be. These witnesses each testified
. We don't know what they were. Judge IG absolutely agree. If there were other evidence available, then we might be dealing with those additional issues. But they're present in this record where we have only, we have only what we have. There wasn't this additional evidence out there. And we have the government's motion, which was endorsed again by the district court. And I think the premise of that in the rationale where the district course ruling was clear, my colleague, the other side mentioned that, well, this is within the district course discretion in managing the case that you could have moved it from cross examination to the defense case. That's certainly true. The district court does have discretion in managing his case. But that's not what happened here. The premise of Judge Conrad's ruling and of the government's motion was not this evidence is, you know, more appropriate during the defense case. It was this evidence is irrelevant. If the evidence is irrelevant during the case, during cross examination, it's irrelevant during the defense case as well. This was not an exercise of the course discretion to manage when evidence comes in. And that makes sense because this evidence was within the scope of the direct examination, which is exactly what cross examination is supposed to be. These witnesses each testified. This is how genuine pills are distributed. They come in bottles, they go through wholesalers, et cetera. Within the perfect rebuttal to that is, well, is that the only way that genuine pills ever make it to market? And the answer is no. Sometimes they're different. From their intended traditional supply chain and end up being sold on the underground market in just the same way that these pills were sold in this case. And go back to a point that Judge Diaz you led with the government's council asking what the connection was and was the government's case equally speculative here. The government's council answered that, well, these things were indisputably within Mr. Zayah's mind. But that's just not true. The way that the traditional supply chain works is not something that is necessarily within Mr. Zayah's knowledge. There's no showing that he's aware that these pills are only distributed in bottles that have a lot numbers in with prescriptions. They rely on the jury to infer that he must have known that, simply because he's dealing with these pills. We think that an equally plausible inference is, because he's dealing with these pills, he's also aware that there are problems of diversion that all of these companies have faced and that is a result of those problems. Pills end up being distributed on the underground market that are genuine pills, not counterfeit pills. And Judge Floyd, your question about willful blindness
. There certainly was a willful blindness instruction. I think it's important to note that that instruction was present in the first trial as well and the jury was unable to find that Mr. Zayah was willfully blind. I think the reason for that is that the willful blindness finding relies on the same flawed set of inferences that the pure knowledge finding would rely on. I think, unless there are further questions, that's all I have and I would thank the Court for its time. Thank you very much, Mr. Carpenter. We appreciate the arguments from both Council. We're going t