i give anything ok i'm going to cut straight to the chase then your honor and i'm going to talk about the cross examination issue and whether we should be able to that is defense counsel should be able to delve into punishment of cooperate in witnesses during cross examination in every single drug case that i have done at least every drug conspiracy theories that i have done we have dealt with cooperating witnesses and as defense counsel what we do in order to cast doubt on the credibility of these witnesses is take out their plea agreements which invariably have benefits that have been conferred on these witnesses by the government in the form of five five one point one oceans and rule thirty five motions that we talk about you know how you can earn this benefit which is a reduction of sentencing by cooperating with the government and providing substantial assistance against anyone in some cases the say that you're not allowed to shoe or t in this case we have the schoenberg case which judge kleinfeld wrote and he indicated that the defendant in these situations should be able to show the benefit conferred and the detriment of void cited that's the status of the law in the ninth circuit now i think that with respect to the question that the court your order was asking just just a little bit ago that the cases talked about whether the jail time these witnesses could have facebook for their cooperation is marginally relevant or whether it was necessary or not necessary in order for the defendants to elicit those biases from them from the witnesses and whether they could make a discriminating appraisal and the problem here is that once we have cross examine this witness on the stand in a list of that evidence from that witness the witnesses ends up saying well i've seen the light and now i'm honest i would point the court for the specific location in the record which is page eight hundred eighty two of the trial transcript and this is the testimony reactor he says the question is posed in you're doing this you're just doing this is a good citizen is the answer is i'm doing this because it's the right thing to do for two pages later  you're getting less of a sentence than he is now i mean burned to the jury even though maybe not how many years last well i think that's the critical importance if your point the courts another page it's eighty four he says i hear they ask me to be even though there's a jury instruction that says the courts to punish and punishment is within the province within the province of the court not within the province of the jury oftentimes don't have the ability to cross examination that they wanted to get into may not have been that substantial of a difference because you already had and agreeing that they committed perjury i want to switch to the other issue i want to motion this is all based on fact the only way the only member of the conspiracy that even mentioned then was spencer and when spencer did mention him he mentioned that he had sometime in the summer of two thousand and one maybe up to september we know it couldn't have been after september because by then spencer was arrested and in jail so we have one  so out of the three witnesses spencer van der sloot and thompson only one of them spencer testified that he gave ben the guilty on every single one of the substandard counts and even every one of the allegations that were in count one the conspiracy if you match the allegations in count one of with methamphetamine and the entire case was about trafficking and methamphetamine the charges were possessing with intent trafficking which is a different creature than trafficking or distributing in its entirety it's as different as saying two partners in the business of raising cattle are somehow coconspirators with all those that are in the marketplace of marketing cattle it's completely different in the two concepts have been mixed and matched this entire trial over my strenuous objections there was never an couldn't have conspired to do it because it occurred without his knowledge well after his participation in allegedly receiving some for further distribution and he clearly was never principle in all this so the case is organically bad from the very beginning and that point is preventive and it should as the entire matter to be thrown out the only other issue i want to argue and it's the one that i am obsessed with and thank you for listening at least thirty seconds the supreme court has never gone back and said that in that case where there is something other than the precise crime contemplated that you can still get a conviction with out and just the bare concept of foreseeability the pinkerton case did say if we have a case where where the crime was not forseeable it might be a different creature but it never said that if you're foreseeability as opposed to contemplating the price without taking a crime because the shelf that congress has set forth the elements of and proving it is purely a way to put people in jail bypassing congress and bypassing the president there is there is not a statute anywhere that says that you go to jail because you joined a conspiracy and then it is a foreseeable consequence and other crimes committed in fact both the conspiracy statutes which we usually battle with three seventy and eight forty six both of those say the exact opposite they say if you commit the crime spares to you or you can go to jail for with three seventy one five years for the drug conspiracies for the length of time that the object of the conspiracy that you were contemplating would have for time no i'm saying that you can then also go to jail for crimes committed in furtherance of the conspiracy the only white people that that are circuit court judges and that's what i'm here to complain about your guy when it you've got to stop it and that's what i'm asking and that is i've grilled the bedrock on the issues you have hired a clerk to drill to bedrock and please the court my name is jay lansing i'm appearing on behalf of wesley kim's father wesley is one of the as the only defended that of the five of us who pled guilty and he feels his sentence has to count one of two hundred thirty five months which when combined with the firearm offense resulted in him being sentenced to two hundred ninety five months the primary issue in regard to wesley is whether or not he should have received a two level increase for being a manager or supervisor of others that is a difference of sixty seven months for wesley wesley was sentenced about sixty days before the first family in decision and in this particular case we strenuously objected to the three level increase westley did not admit to being a manager or supervisor of anyone that enhancement was not found by a jury and that as we know under howard shifts the burden to the government to satisfy us burton to present evidence in support of that hanson in this particular case the government we also know from  that it cannot rely on the p s r to meet that burden in establishing the factual basis for the enhancement and that is exactly what happened in this case and which meant a difference of sixty seven months for wesley the only person that wesley was to have supervised was a fellow by the name of michael both men and there was never there mr both and was never called as a witness at the trial i would also note that wesley was only there for about the first i want to say we were there for the first two want to have days  fourteen pounds i realize i mean i would tell you what we what is in the his statement i'm talking about wesley statement is he said i made arrangements for mr both meant to go out to california because he had already been out to california before and mr both men my understanding was is that his mother was living out in california and so mr both didn't happen to be going out there and went out and delivered some money in picked up some drugs but to simply say that he assumed the position of mr spencer i understand that there's that urge to say well then he said in any supervising others the problem is this is i don't know of one single person above judge you know that's that's perfectly his right but the problem is is that that doesn't change the fact that if he was anything he was the manager organizer leader earth supervisor of this entire matter and in was testimony about an attempt that he and hodges and other coconspirator were engaged in to go rob the spencer as spencer was taking money back to california to pick up more to pay off the front of methamphetamine to pick up more various witnesses they made all those points that the government decided whether to support the system was substantial enough and whether the witnesses were telling the truth distinguishing factors of the penny a case or the the witness and that he's committed perjury he lied to the us it is falsified income tax returns for that reason the panel indicated that jail time was only mar  relevant here we have already a realtor who the government agreed to cut his sentence by fifty percent and what's important the reason it's more important than largely relevant is because fifty percent of what that's why we need the price people but even if you just took the government's view that he had to organize other people he didn't do that here but the evidence is that black holes came with him to react or introduce them it's only did they  single case they cite in their brief in support of the idea that these facts support a conspiracy they support a conspiracy to distribute graft but not a conspiracy to a league to support the distribution of cattle throughout the state of montana market attracted to everything in ever own protection cal but aid or abet that distribution but in terms of helping ranchers possess cattle for further distribution you've got to be a partner on the ranch to do it and you know what and you have got to possess it you've got it and you and we've got to help in the possession and they are two distinct philosophical differences and the government agreement when they determined that mr spielman or the defendant in that case had not waived their right to appeal by that language and we would simply ask the court to follow the previous decision in spielman  i don't remember a judge i thought it was the same time i believe it is but i couldn't and it was marsh i heard but it's the it's the same language it's in many of our plea agreements thank you very much