the agents merely provide an opportunity to the defendant now nobody argued that he was predisposed in the case the government never argued apolo mr lewis argued that he was not predisposed submitted the model of construction what actually happened was the government made a submission of jury instructions which included the model ninth circuit instruction and that was then actually filed so it's not actually in the record th if both sides agreed on what you're saying well i can tell you that what's in the record is actually very very limited there's only two lines where the court's going to insert and not here and the problem is that the court actually as i remember had a colloquy that was not on the record related to this jury instruction so it's really i mean i can't really say yes i mean the bottom line is that i think pages of objections related to other portions of the entrapment instructions so clearly there was a lot of objections to this instruction that the instruction itself goes on for almost two and a half three pages so it's a very lengthy providing an option it doesn't ask only providing an opportunity and so what the instruction effectively did was it cut off the just the jury's deliberations on that point because the government usually provide when he pointed out that his rights had been violated because the court had failed to make any findings whatsoever during this period of january two thousand and eight two thousand a period of five months everybody lea ided after a trial or during trial and i think you could read gorman to say that for motions that could be decided during trial they want to exclude time and so that this motion motion read that way the problem is that it's truly a logical result because there are so many emotions that have nothing to do with the trial date that have nothing to do with causing a delay in the trial date but pegged to the final pretrial conference and so every time the court continued the trial date that that motion moved and it was like trying to hit a moving target because as judge reinhart points out  keep going forever and all you had to do was keep picking the trial date and then the motion would follow and then you just keep excluding time and you've totally now and destroyed the act the required result of result from has no meaning at that point properly venue to in any district in which the package may indeed pass in this particular case it's no quite there's no question that all the activity in the conspiracy or the the subset of was that the packages for some shipments went through the port of entry in oakland they were shipped express mail or federal express from the far east and came in on the way to arizona they passed through the port of entry in oakland now the question is is that whether that that that is too attenuated even if we look at it we assume that this defense of the continuing offense is it fair and is it proper to have a venue properly placed just where the packages circum were to originally may go through the port of entry there are many ports of entry in california in fact in this case there was evidence that there was a entry that the packages might have gone through in anchorage and that the answer to that goes to the the count thirty three december shipment for which the local and port of entry there's no record of that package going through and i submit to the court that a five forty five offense it should be where the packages was intended to go where the defendants resided where all the activity occurred not just where the bulk of the package might have gone through this in a case where there was no real connection to the northern district of california the only connection later on was where in the words some phone calls were made to the relate not to these protect specific counsel but because the that's true but it's still the prosecution would have to prove by a preponderance of the evidence and the question is whether they can use that and i guess that relates to the second issue in terms of relevant conduct in this particular case the issue is that what  of foreseeability is this what are these other three shipments foreseeable to him and the answer is no the how could he be foreseeable if they were specifically going around him by using these other methods and so going back to the fruit of the question is asked in terms of count thirty three and the other counts that the other shipments that were used we're talking a substantial difference in an relevant conduct we're talking value and if we eliminate the other shipments were down even further so all this does make a difference in terms of spending th covers the same harm i mean the objection below was the fact that mr pollution was in it for gain there's no evidence that he profited or was intended to profit by by his role in this offense that was overruled by the the gain in the they're wise financial motive involved but you get an extra two points for that and i contend that that that's that's the improper miscible double counting on the guidelines and shouldn't be used the final point i'd like to make and i'd like to reserve a couple compared to the others in this case if we if we talk about the other defendants there's mr wong there's mr lewis there's mr burroughs all these people were the kind of the alleged core of the of the conspiracy to import animals into united states mr miller and mr lew king who who were treated differently they were cooperating witnesses in this particular case we can we could a limited them i recruit others from federal express to to help import animals well in fact no one was recruited everyone that testified for the government you asked me i didn't i didn't agree knowing track record he attempted it of according to the evidence he attempted to recruit them they all said no they didn't know actions and in fact mr pollution other than the picking up of the december nineteenth ninety seven package had had really nothing didn't pick up the animals didn't miss direct the packages in any way for any other shipment not the shipments not the obvious ship makers that just didn't go anywhere it was attempted to be delivered by another person  minor participant i wasn't asking for a minimal participant because that you have to be the least involved but in terms of the other players in this particular case that weren't cooperators he certainly  speedy trial act if you as the court knows there's been two different issues raised as to the speedy trial act and i believe that this morning mr lewis has only focused on the one of the pending pretrial motion that motion created the potential for abuse but the supreme court citing direct legislative history on that issue said that any for potential for abuse should be pleased about local court rules rather than by the speedy trial act because congress had made an exploit the decision not to make that it not to have courts make that inquiry in addition i would point out that there is always the backstop of a due process speedy trial argument relying on the parker view window factors as opposed to the speedy trial act but for some reason congress in out the concerns you can respond to them i can understand district court saying my practice with the practice of this district court under rules is that pretrial motions should be raised in respect the pretrial conference that's where i'll deal with them in the lawyers on both sides say we understand that there were going to comply with the rules we will file no motions until thirty days or ninety days that the pretrial conference will file them ninety days or sixty days in advance so that's what they're ready for disposition of the conference but we will not file them until your honor sets a pretrial conference and then the trial is not scheduled  says i've got this motion on monster quintile testimony i'll take that up at the pretrial conference and by the way any way you occasioned by the filing of this motion is excludable that's not a violation and the on the record i couldn't decide it then i didn't have the information we have this judge in the next case and he was certain a sentencing who was corn and who was cheating and it turns out he was dead wrong well here i think you can actually look at the record and see that there are a disagree with that the fact that they were able to bring it to trial within your does not mean that no one was trying for that and i think for who was trying to protect pro government of course the government's trying to bring in the sense that there was a variety of factors that were making that very difficult and i just i would i would suggest moved and mr pollute has argued that this court should rely on the branding case out of the second circuit but that only involved the issue of the use of males aspect of thirty to thirty seven we're not relying on the use of males language we're going to the same place or what happened for example in the states or cases you have a series of drug transactions moving from florida to chicago and one of them there was no evidence about where the transact where the where the dr where you have the other shipments coming through oakland i think it was perfectly reasonable for the court to find again by a preponderance of the evidence that this shipment would have done the same now that in the alternative we have this alternative argument about the  all actually what it says that what it found was that it was relying on the otherwise commercial purpose so all it found was that there was a commercial purpose in imposing one enhanced and then imposing another enhanced based on the market value of the wildlife point on our brief market value of wildlife is related to a number of that to the extensiveness of the scheme and doesn't if it doesn't go to the same factor as the otherwise commercial purpose his argument as to being the minor early on was telling agent moore assumed that he was coming up with a scheme with pollute shows that he was and intimately involved in the planning of the scheme and second the fact that he was out recruiting people and the fact that he was unsuccessful in recruiting people i don't think which speaking of standard of review in my last forty seconds just to go to the entrapment instruction issue is clearly a plain error the fact that he raised other objections to the same instruction had nothing to do with with this issue and the fact court pointed out the difference between what's at issue here which is the question of whether or not the right results from a motion pending motion and whether or not that delays unreasonable and i'm quoting from page was argued brief argued reconsideration was motions were filed and that's the way the trial hear this motion held out in advance for two years and then suddenly someone discovered it and all of a sudden it five months nearly eight months after the motion has been filed so it's not just the five months of issue here it's got to run for two years another government another suggestion that counsel need was the at the final pretrial conference that just happens in practice and there's a good reason for it because if the matter is going to go to trial the judge is going to want to spend the time to kind of decide some of these things it's kind of silly to decide and spend a decided at the final pretrial and there are a number of other motions that under the government's reasoning are going to exclude time for five years ten years fifteen years motions for instance to have the defense investigators defense counsel table substantive issues of evidence and things like that but more kind of the procedural how are we going to conduct the trial are handled more closer to trial and in the normal course of things at the final  three false labeling counties acquitted those counts so we've challenge on venue grounds all that the counts of conviction which are the smuggling and the conspiracy count in terms of the issue minor  these were the defendants they were charging mr miller for which my client was compared with mr miller was the person who benefited from the scheme he was involved in at least four of the shipments he was a prime mover sold the animals that he