my name my name is alan family i represent one of the three of helen's tiny as i represented mr results in the district court as well i will take not more than five minutes to address the claims be responding to the government's argument i will reserve hopefully five minutes to address the issues regarding the sentence which are presented by the government's cross appeal the government presented a circumstantial in and wholly if we submit speculative case as to him it was alice we acknowledge that they did present enough evidence to permit a reasonable juror to go part of the way down the path that they sought to follow we agreed that the evidence results was not shown to have access it was in his apartment it was an apartment that he had moved into a week or two earlier at the request of brooks who was trying to charged with conspiring to import heroin and cocaine those dollars was not brooks's only source there was no evidence that brooks did not have other sources from which he could obtain cocaine when i think that the hydraulic press been used for well it's use it can be used in metal metallurgical applications in stamping in it generally in an industrial setting and we think the jury was unreasonable i think the jury did not have enough evidence to fit make a finding that rose dollars knew what it was used for and why it was there or that it was ever used for that purpose nobody said that press was the kind of conspiracy i've got volume over the course of the conspiracy with sci fi fans i just don't think that you can sprinkle reasonable inferences over these separate fact if you're going from pose a mandatory minimum you have to find that the defendant in question could reasonably foresee the weight that's in the band while this case that you're i have wrote to the effect that's exactly right and my time is up for this used that term was that in furtherance of this conspiracy that's so that's my point out that's my answer to that you're right that that you can't just say anything was out was did in his drug activity if he did other things as part of this conspiracy that he was all three of those cooperated have been witnesses however not all three of those witnesses were involved in all of the counts so i said that that analysis ships of it those witnesses that were involved in the new york process and not necessarily the local distribution but the local distribution was based on the intercepted phone calls the evidence regarding getting authorization for the wiretaps was that all this the officers put together  that are practically a script of the testimony here and that was not plain error but the get strong case and the cons as well as smith words play an error because when the government seeks to put layer upon layer of irrelevant evidence evidence of something going on but are not proof beyond a reasonable doubt for the jury to doubt that these phone calls were in fact evidence of drug activity that would have to contradict what was already a professional judgment of high level government  agents department of justice agents and in fact a federal judge just like the trial judge in this case we believe that does affect the integrity that if you just a process that the prosecution would present such evidence especially to the degree it post basically and essentially arbitrary recommendation of the government that it be ninety seven months the recommendation or wrote in the fact that the defendant mr lee's declined to jump through the technical hoop of offering a points for doing us court can't ignore them i mean you know this specifically sorry this is part of the guidelines is that if you want to point us to make a profit and now the  hearing very well say well you qualify anyway yes right there and that's why i'm not raising the guidelines issue i'm raising thirty five fifty three issue i'm not saying that the guidelines were incorrect or calculated i'm saying that when the government stood up before the court and said or let me point out that our concession relates to one question in the course of a month long trial and standing alone if you might you might survive on that but with all the other the cumulative effect and you are even taking defendant brooks were overwhelming there were nearly seventy wiretapped conversations introduced at trial and yes there was some coded talk but when the defendants results in bribes used the term half a kilo i think the jury why none of this could be plainer and that is the seizures that took place at the airport at o'hare airport in chicago there were a series of phone calls where alfonso brooks designated and  which the phone calls in this feature of the heroin are more than enough to have convicted defend approach we would have put forth that evidence and i feel very confident about our chances of trial had we not had thompson's witness so i don't think was a wiretap calls in the seizures no cooperate or testimony at all counts actually all the remaining counts of the indictment from eleven on up they were either based soley on wiretap evidence or drug seizures some of which the defendant professes now proceeding so i think the only counts that we're talking about that the testimony of these witnesses went to are one through four and those are essentially the conspiracy count independent evidence not been able to establish the ten year mandatory minimum but in fact just that one day in chicago is double the amount necessary to establish a ten year mandatory minimum so on plain  makes a point of noting when the government we hash is the belching it's much more the i'm sure here we did not do that there were limiting and there were the typical jury instructions given by the court both before the trial and after the trial about  lot of things and that's the argument that was always read at trial but when the jury convicted on this count well that's kind of the jury's going to have a rational basis for influence one of the other jury and that's i guess that gets back to the point that you didn't want me to maybe maybe it's a blanton the general rule of course is that double jeopardy does not apply in the sense in context now and that's the monster case from the supreme court when found that that rule was not a political in that case because the player is a vision that was that issue was a non jury juvenile adjudication the entire analysis that followed in the land flowed from that fact that it was a juvenile adjudication that is not deemed a prior conviction on her apprentice it is not included in the exception under a plan b for prior convictions and so that in in the point in case it had to be proved to a jury in that case charges backfired beyond a reasonable doubt the court then because of that applied  reverse of the reasons the court gave for not enforcing his prior conviction on water the discrepancy of the court pointed out to an alleged discrepancy that really doesn't exist in the facts there were both the doesn't distinguish between the drugs and the element of the offenses don't include drugs and the courts reasoning that washington state somehow treats this like a misdemeanor albeit classified as a felony is that does not result from a separate statutory enhancing factor and that's what you have in plan just like in this case and when it was three priors two of them were knocked out the judge found the handsomeness don't apply here we have only judge did was to find that those present facts did not exist so to give the government another bite at the apple and send the case back for research and seeing would expose mr solace to double jeopardy i wish i had time to have a defendant who's facing a double mandatory based on a prior foreign conviction which would permit a double mandatory for drugs let's say it occurred in malaysia and it's undisputed it's ten years old it's undisputed that he was tortured and i coun let's look at the issues that are raised in my brief in terms of the construction of the statute and the results that flow from a literal application of the words of the statute  in this case we're talking about a series of amendments that occurred over a decade or more in which congress sought to fill a gap in federal sen by including state court convictions as critical felonies that would have the effect of doubling the punishments when they adopted the amendment that included state and farm convictions there were no mandatory there was no need to look carefully at the impact of any of expanding the scope of the statute because a district judge could take care of it at sentencing if somebody had a misdemeanor type or let's say a simple possession type conviction the court could go ahead and impose sentence accordingly and try and take that into account the mandatories were introduced two years after the scope of prior felony conviction was expanded second factor that leads to what we submit is an unintended and absurd result is the fact that in one thousand nine hundred eighty eight i believe congress adopted a three strikes you're out provision for third time offenders that provision i triggered by the same types of convictions that up apply in this case and so you could have a situation where a person with two simple misdemeanor simple possession misdemeanors and under federal court federal law subjected to a mandatory life sentence without the possibility of parole given the structure of the act which provides for far more serious penalties for traffickers than it does for simple persons who are users question of did the judge here did a judge here in camden authorize the wiretaps that was one single question but the court warned that if the prosecutor had told the court that they had told the jury that the court t guilty that it would be reversible error in this case the court the prosecutor told the jury that not once but twice in incorporating the approval of the judge assigned to this case just like the negotiations with another drug dealer is that that other drug dealer would have to give them half a kilo for his jeep in that same conversation he said but you have to give me a square for the coming here and the is not forgiving at all on the phone and said look if you don't stop the message maybe only three minutes but what you all do when you found when you invoke the authority of the u s attorney in her disagree but on a plane error standard no court has reversed the conviction for this issue and certainly not with the overwhelming evidence that we have killed in this racket thank you