verdict they were benefits that had been under some discussion at least by counsel for codefendant riviera from the very beginning of the case and we did see some extraordinary changes of the charges early on in the case of the first motion hearing on july ninth of two thousand and four the drug charges against mister were dismissed and so you don't you have any evidence but  testified of that of course they were trying to get a better deal or frank a better deal all along but there was no agreement was there just by the he didn't testify he did speak to the court right in the hearing the next morning that he had been trying to get a better deal in fact  for the total six months our concern is that the record was really never developed in this regard the jury never found out that she received an extraordinary benefit council or why would that matter if you didn't get the benefit after the jury completed its deliberations why should the jury be told later on by the way after you guys got done she got a better deal well i think it would have been wise for the jury to know more instructive and salient for the jury to know that there were discussions ongoing and that there was a concert you don't have any evidence that there were discussions ongoing her counsel i'm doing everything i can to get her a better deal but on the day that she testifies she doesn't have a better deal we don't know and no one has been as conducted the investigation which would allow us to know and so one of the things that we're asking your you honestly consider doing is refer the case back for the fact finding on this issue so that we can examine what happened when when remains at that point i'm contradicted you don't have any evidence to contradict that i we do have we do have evidence that from her counsel i did i believe the government although there was no there was no deal until until the day after intel after the  prosecution but she did not say that the that consideration took place just at the last moment she did say and later in the record there's an indication that there was thoughtful consideration given to the question of a deferred prosecution or dismissal to my mind thoughtful consideration is something that takes place in less than literally hours from arguing to the jury on one hand that mr reversed did not receive a very good deal countering the argument of trial counsel for mr tapioca that she received a great deal that she was ill where she would get it was hoping for a six month sentence and hoping for help on the deportation counsel for the government then argued in rebuttal that no she was facing five years in prison only the supervisor these terms and likely deportation where she would be rich from the united states the only country she really knew this and she was just two years old to a country that was one of the it to her taken from her friends family and her schooling and so on your honors i do want to turn to two other errors that i think are very significant in the case one is the statement made by the case agent concerning statements made by mr tapir after his arrest his agent my aunt testified that mr tapley as a statement was not forthcoming quote i had to make sure i was getting an accurate statement when a witness comments on the iraq study of another witness's testimony course that's improper and then when the government comments on an accuse right to remain silent of course that's improper and it affects the due process rights of mr tapley here this is an interesting situation because this case agent has a bachelor degree in political science and french from arizona state university she went on then to study at the sorbonne in paris where she received it you agree also in french i think she chose her words decision with which that word was chosen can lead us to believe that it was clearly a comment on mr tapio it's right to remain silent it's clearly a comment on whether or not he was a truthful witness at her when she was interviewing him after his arrest finally evidence of mr tapley as lack of employment was argued to the jury as a possible motive that objection in the trial court we believe that there is that these are clear as fair or so that affect mr tackiest substantial rights his view process rights and his rights to remain silent finally we are asking the court to remain and the case for consideration of the effect of thirty five fifty three a factors the district court when it imposed sentence was operating during that interim period where the guidelines were still mandatory the judge specifically selected a sentence at the low end of the guideline range considering all of the factors but the judge the court did not consider the thirty five fifty three a fact we think also that the remaining and four for the same thing should be reminded with instructions that no reasonable of fact could have found the weight of the marijuana to be between ten and twenty kilograms twenty one packages were taken from the car only one package was examined that one package turned out to weigh something just under four hundred  grams even multiplying that times to twenty one packages you have less than ten kilograms we maintain however that no more than four hundred fifty grams can be found beyond a reasonable doubt by a reasonable trier agreement at this point that the that the nature of the discussions that were going to continue it out and unfortunately mr hermanson was not able to get all of that out the district court had some other questions and that particular fact wasn't able to come out i change in the can in the deal with misreading is not only the tell normally people complain of the government takes too long in this case it was a matter of i think the verdict came in about two o'clock on a thursday and we had a hearing at eight thirty on friday comments that yes he attacked me for the new deal but that no agreement was reached absolutely not nothing about creech child aversion was or are you part agreement or anything else was brought up until after the trial and that is very it was more a description of how he was answering the questions it was five or six questions to get a statement out and there was no comment at whatsoever on the fact that number one he asked first parole officer when he was first arrested rights in this case again we're talking about three questions and answers and one comment that i made during closing arguments and looking at all of the other evidence in this case that that weighed in favor of the defend the lies that he told to the pre primary inspector about who owned the car who he was visiting down in mexico his actions his duty and the fact that he made his girlfriend drive the car within a few yards of the border all of that   in favor of the defense certainly i don't think the jury would have convicted this defendant just because he didn't have a job and he'd paid for rental car and was buying this truck down in mexico the manner in which he purchased the truck he picked up the truck at three o'clock in the morning it's really a reasonable to think that someone if they're just buying a vehicle they're going to pick up a car at a dealership or a private party at three o'clock in the morning i mean talk about a truck it was it is your duty as a reggie cherokee you know whe at the moment that they arrived the next to the point they reach the border all end in favor that this defendant knew that there was in fact marijuana in the car and that he was trying to get that car into the united states and again turn only a comment that i made and three however the issue concerning that there was no or no reason the tire to determine that there was or included there was between ten and twenty kilograms of marijuana in the vehicle set forth in my papers and is argue packages that was photographed at the shopping cart literally full of marijuana the secondary inspector officer deford's testified that they were all around the same way now unfortunately during the course of  had the representative bret one of the twenty one the packaging way to proximately fourteen percent of the total weight and just if you're looking at all of the evidence the fact that all of the marijuana contains a type of wrapping point nine five you know that's what that was the bulk of marijuana including packaging that's what the twenty one packages weight and that was the testimony that officer duffer testified to and because they both marijuana was destroyed we only had one representative sample but the d n a can that's mr rice had along with the representative samples and he weighed one of the breakfast one of the packages and that one package had fourteen percent packaging so if you take fourteen percent packaging for all the packages because larger packages are going to have more and saran wrap or or plastic wrap smaller packages  after quote thoughtful consideration i think that thoughtful consideration implies a great deal more than just a few hours the district court was very concerned because he first heard the testimony at trial government counsel knew with this young woman was going to say she met with  court's concerns arising overnight is not surprising me a thoughtful consideration is much more than just a few hours particularly in the face of the months of her good will from the government came back the next morning they leave broad the sentencing of mystery of this from october fifteenth to november seventeenth november seventeenth to january twenty eighth of two thousand and five when the charges were ultimately dismissed during that period of time and history of us was on