as i look around i notice that we have three lawyers and five defendants you know cordon for lawyers five ok fine all right gentlemen before we start the clock running subject to the other give us a heads up so we can take notes on those different subjects i will be all right it's actually just going to be two and if i can save one minute for rebuttal i do that you have to do that by yourself if you got prosecutor may not ask a jury to protect community values or make a statement with its verdict here but in the prosecutor started his closing argument by urging the jurors to stand up for the community in say no more to the defendants he returned to this theme numerous times throughout the course of his argument repeatedly telling the jurors enough is enough no more and it is time to put it into that suit because you have limited time i mean you assume for a moment that the argument was improper have you demonstrated prejudice well this is there first of all i believe the standard is is harmless timelessness for a moment pretty substantial evidence in this case including a tape of your client why why should we tell me what tell me why it wasn't harmless well obviously can't speak for the other defendants in this right now the defendants and i see other ones i think the evidence is strongest listen to speak to your client well i think the first thing is that this court even where there is a i mean in this case there were at least seven defense objections curative particularly where i was objecting repeatedly and asking for a mistrial that under those circumstances this court can't find that this was harmless i know you've got limited time i want to ask you about the sentencing issues  two questions although the district judge didn't cite them when i look at the pre sentence report it appears that there were two prior section two having convictions is that true there was actually no pre sent before those are sure to catch it my recollection is there was one second question is if there's only one and the question is whether the prior eleven three seventy nine conviction is for a controlled substance offense we have a case pending on that issue your where should we should we await the outcome of that case to do so because if in fact if in fact martinez lopez comes out the wrong way from your perspective then this sentencing issue goes away does it not well i would knock out confused when i looked in the record do seem to be a reference to two section two eleven convictions and i can't i don't nobody seems to rely on the second one but if we were to send it back the district judge could deal with that right but again there was no present report here th all the counts of conviction you group them all into one before you impose a sentence and here there were four guys there were four and they were all extraordinarily high so if we were to find it that was your second issue would in  raised again to the district court when you went back right in so that the fact that he had four extraordinarily high guidelines ranges this court has consistently held that that impacts the sentencing court's decision making when it comes to variance and although the court did vary here that variance could very well have been more substantial heads had the court not been looking at four extremely high guidelines rate ranges and i see i'm into my rebuttal minutes of i can stop now thank you  some sentencing issues mr print and this is part one of the we talked about the defense council about dividing this up and how we would best approach it from mr fernandez's perspective the enrquez testimony really folds into many of the other issues it folds into the prosecutor's opening or closing argument that the call to the improper call to inflame the community and then we have boxer and rica's  testimony was unnecessary there is in the record two other law enforcement witnesses who the government could have called and probably at substantially less expense and having to pay law enforcement to surround  certainly other ways to do it ways that would not inflame the jury and in fact this jury was so frightened by this witness that they were very concerned there were three instances where the jurors  told the court that they were scared because of things that people in the audience were doing that were completely in counselors is enough is that a fair characterization of the record that a lot of the awful details of crimes in which mr enrquez was involved was brought up by defense counsel in cross examination i gather in an effort to impeach mr rica's is that a fair characterization of the record that is a fair characterization and that had to happen once the government open the door to that and they brought this guy in with all these  defense had no choice but to try to impeach him further and government had to have known that particularly given what was a clearly a planned out closing argument that tied into really boxer and rica's his testimony and with which goes to one of the questions raised its harmlessness what was the harm to hector when he was you know was in the i want to ask you about that because the evidence as to your client seems somewhat stronger than the evidence is to mr paragon maybe i'm maybe i'm mischaracterizing well i would respectfully disagree your honor the jury acquitted mr fernandez of the conspiracy to distribute narcotics the government dismissed another count what is s overall and this conspiracy to commit a conspiracy to commit a conspiracy which is really what the rico charge was was sowing the office and it was supported against mr fernandez by  evidence that he was unable to confront by real tape recordings of an informant who never showed up that it it that was the when the jurors decided to convict him of that that was almost inevitable after  court and the jurors understanding that there really was no evidence to tie him to these narcotics conspiracies to the firearm offense and yet again segue in a moment i hope to the sentencing issues the court considered all of those and more than doubling mr fernandez a sentence so you know the new sentencing kind of would you just because i know you're running out of time just tell me briefly what your what your sentencing argument well it's th case like this where the government chose not to ask for special verdict forms where they particularly backed by the hearsay evidence of the informant which is really the reason the jury convicted mr that hearsay evidence i think based on all that the wind cases that is the better choice and and let me just say when the court in that two to one point one says for the multiple counts they are all their convictions are grouped as convictions you know you don't group unless there is a conviction so i think that internally within the guidelines it requires a conviction before grouping that's what the court in this case d we need to address the other issues in other words we vacate the sentence and send it back and i suspect it'll be a different district judge given what we are is no different there is a judge just then and if the judge makes the same mistakes as to the other two issues that you think judge gonzales made you can come back up here but maybe she won't maybe the new judge won't that well i think that's that's correct the court could go either way the court as long as i have an open record two we argue it to ask the government whether there reposed that but if so maybe you can save some extra time for your giving colleagues i think i'm right on the other two issues i gather you may well you may well be but when we have a  in sentencing yes and we agree for reminding that matters ok and you don't wiretap we we argued in our moving papers regarding the society and in this case it was very clear that the officers could have a deuce the information they wanted the way the pen registers through surveillance the g p s monitoring through multiple ways to get mr good terrorist information they wanted to do instead of getting a wiretap any of that business with a terrorist was in fact on parole during the tire time that the wiretap that they attempt to get away before they got the wiretap he was already on parole he checked his prof's from once a month he every phone call  lose using it i'm sorry wasn't there evidence that he was using there were there was a couple of phone calls only made to that phone and that was it is your argument that the government government hadn't sufficiently shown in the assess if they were tapped yes to begin with and then of course you would you go into whether or not there was an abuse of discretion but that's when having some difficulty with tell me what part we review for abuse of discretion and what part  district court's determination of necessity under the statute for abuse of discretion yes ron ok in that regard john obviously we believe that the district order abuse its  has some boilerplate arguments within they have a little bit more didn't they say we've tried to cultivate informants but they're all scared we had an informant who was going to help us but then decided not to whether or not that's enough kept any other way to to to get information on mr terrace is a fishing expedition that that this task force wanted to do just to get a bunch of people together whoever they could and mr gates here is just happened to see a couple of phone calls that he was them is the prosecutor summation could you could you start with that because i i find it disturbing so are your honor the provocative elements in this case came from the defendant's actions the jury heard about beatings assaults robberies dry five shootings were no and the prosecutor was entitled to say you've heard all this evidence and it's terrible stuff and you should convict them because with the prosecutor seems to  more it sure sounds like a send a message and protect the community argument the very kind of argument we've previously said you shouldn't make so to defend the argument you made for and what this court has sa what the prosecutor was asking the jury to do through its summation remarks is really summed up in se are four two four three where the prosecutor told the jury it's time for some responsibility to be had it is time for you to tell them that  responsible for this and you should do so with their verdicts of guilty that's nothing that there's nothing improper about that this court has repeatedly and in fact has has stated that telling the jury to act as the conscience of the community or to send a message that's tethered to the evidence is fine so long as it's not designed to inflame or asked a jury to find the defendant guilty on the basis of anything other than the evidence the three hour summation in this case was devoted entirely to the evidence that was demonstrated that trial and what we heard throughout the trial was that the defendants were engaged for example an attempted murder mr barragan was charged with attempted murder of my car fund as well as two nine twenty fo he didn't say they did all this stuff and they're really bad people and you should make them which is fine and a lot of his argument is along those lines but what about telling the jury that it's their job to stand up and say  no or is that's not their job that's a no win in the court and the prosecutor never suggested their job was to do anything other than to evaluate the evidence and again i point to s c r three nine six nine that's another part portion of the prosecutor summation where he said these individuals need to be held responsible because that was tied to the evidence there's nothing improper about those remarks there's nothing about those remarks that are designed to inflame or to prejudice the jury what the prosecutor asked the defendant or the jury to do is to hold them responsible and this is a quote again from me and six nine not just for what they conspired to do or agreed they need to be held responsible for what they did do and the only way that gets done is with verdicts by you that's all but the prosecutor asked the jury to do was to consider the facts and evidence that had been introduced at trial every fact he took through when the summation remarks that are principally challenge are facts that were demonstrated  trial and that bore on the charges that came in the superseding indictment and so in looking at the line that this court has drawn in terms of proper versus improper summation the united states with the senate in the context  it's harmless error arguments you agree that it's a harmless error chapman analysis yes your honor this is not a constitutional the due process was so overwhelmed that that that we would go to a constitutional challenge so we agree that it would i am a shot caller for the west side gang i report to rudy a studio a mexican mafia member as a result there is no way i would have violated a peace treaty that had been imposed by a mexican mafia member and ordered the shooting of israel and as a result i am not guilty of counts two twelve and thirteen that was mr b organs principle defense and you can find that  seventy one through eighty which is mr barrett in opening remarks as well as in his closing on s c r for one thousand five for one thousand six hundred four to one for i'll just briefly quote some parts parts of it r seventy five mr lyman told the jury first of all the idea that mr barragan would tell his gang to disregard disputed direct order is simply not credible you're going to hear a lot of testimony in this case that mr varian is a loyal and you heard the government explain what a serene you know it is it's a southern california gang member and if nothing else mr barrett is a loyal cereno and you're going to hear a lot on that point but secondly the consequences for disloyalty are extreme basically if mr berrigan had told the gang members that he was responsible for ignoring what big homie said that the mexican mafia member that's a good good way to get them all killed not just mr baer yes but all of them in effect what mr in his defense was embrace his guilt on count one that he was part of the conspiracy enterprise for the mexican mafia and as a result asked the jury not to convict him on counts two twelve and thirteen the prosecutor agrees that the judge the judge should shouldn't have grouped the drug offenses separately that one guideline should have governed all came right yes ok why why i wasn't going isn't that sufficient for us to send it back went because it because of improper grouping we can't tell whether the judge might have exercise that discretion differently well no in this case we do know because the court calculated three sixty to committed heinous and violent acts there's two points that i want to make with regard to mr and me one is that is what the mexican mafia does and that is what these defendants were alleged to and convicted of furthering the enterprise of the mexican mafia it was a violent enterprise in the jury heard about the violence that these defendants also committed including the drive by shootings the robbery at the apartments as well as the robbery that occurred at hidden valley know two things the prosecutors remarks and any other error in the trial would have been harmless because the jury acquitted him of one count with for which is he said look that's not a legal question or just something we take into account it's something the court takes into consideration but it's powerful evidence that nothing that was prejudicial or harmful that the defendants contend led to a jury that was so overcome or overwhelmed by the evidence that they've now proposed to convict in this case we have strong evidence that the jury did  not which is that they acquitted mr fernandez of count six but in terms of the evidence that was introduced against him it was undisputed that mr fernandez was a member of the diablos gang there was a cooperating witness and they had an land there rose who came in evil on for three eight two and a member of the diablo scanning he talked about how radius budo the mexican mafia member was a former diablos member and how he had called a meeting of all of the gang members to that they could discuss how they would further the activities of the mexican mafia the on the general evidence tying mr fernandez to the diablos and the diablos activities with the mexican mafia the jury also heard and saw evidence that mr fernandez engaged in an extortion attempt of drug dealers at a denny's in april of two thousand and eleven a confidential source went to denny's along with mr fernando another shot caller for the diablos and met with another shock collar for the bar in san marcos the jury saw that evidence and heard missed fernanda say let's touch him up in regards to another drug dealer who wasn't paying taxes in other words let's go collect taxes on behalf of the mexican mafia from this guy to the jury heard that the jury saw evidence of controlled substance purchases from mr fernandez in may of two thousand and eleven and then they heard witnesses civilians come in a marine whose face was battered and bruised because of the robbery that mr fernandez participated in and what the jury heard is that mr fernandez and his coconspirators are enterprise members went and shouted out the gang name diablos asked the individuals who were sitting at the hidden valley middle school what gang they were part of and then proceeded to beat them and rob them  one of the witnesses civilian witnesses that came in testified and identified mr fernandez as the individual who spoke to her talked the most who was also described as a person who had that so the jury heard all of that evidence which connected into the enterprise activities and so we would submit that any harm that could be alleged from any error that occurred would have been absolutely harmless as demonstrated both by the verdict as well as the overwhelming nature of the evidence against him states versus rodriguez it's an eight five one death third one thirty one that was just decided this year by this court it identifies the standard of review that it's been over for looking at whether there is a full and complete statement of the investigative methods that the agents used as well as an abuse of discretion test for whether necessity existed we believe the district court here did not abuse its discretion which is thermally of what rodriguez actually commands because they went through in that case same sort of analysis to whether there was an s s d as well as a full and complete statement and this case falls within the precise four corners in that case on the basis of rodriguez the court also in united states versus kota denied or affirmed the i'm happy to address any questions specific questions this court may have about any of the other assignments of error but at the end we think in this case the evidence was overwhelming the nature of the facts that were alleged as well as the that the defendant committed were violent they were provocative they involved violence involving the most violent enterprise there is the here and in terms of the mexican mafia so the prosecutors remarks were at the introduction of the evidence by mr rica's was fair and the presentation of the evidence at the trial was fair and to the extent his court could quibble with any of anything that happened the evidence against each defendant or appellant here was overwhelming because of the eleven three seventy nine and then we do think that the first second and third sixth and seventh circuits have the better of the argument on the one b one point two d so let's go back go back to mr bergen for a second  let the judge fix the grouping and by the time by the time the judge if you if you're right the judge will just give the same sentence we will know with how the career offender stuff turns out you're holding on to the case said so and we would respectfully disagree on that we think it would be appropriate to hold on and term and whether martinez lopez would confirm as we believe that eleven three seventy nine is a controlled substance offense and that's because that will ultimately control that's ultimately the dispositive issue which is eleven three seventy nine a controlled substance offense because he's a career offender because his guidelines should have been three sixty to life in the united states admits that the three hundred thirty months that were imposed a proper of the police to testify is both expert witnesses and lay witnesses i gather originally the government did qualify the officers as expert witnesses it was correct ultimately what was alyssa did it trial and we agree with the district court's characterization of each of the opinions that was lay opinion testimony so based on the three detectives and officers earth sixty special agents that testified you had detective ricardo lopez who was the lead investigator in this case who testified about his opinions of ambiguous statements that were provided in recordings and he said that he broods basing his opinion on twenty thousand calls and texts that he had right here in the government's premis eams to be that if the godson freeman also confronted which is to the extent that the interpretation of ambiguous statements from the investigation itself that it lay opinion but certainly the it expert doesn't come in as a new born baby conducting the investigation there are things that the gadson in freeman in this case directly control when both held that a officer can interpret phone calls so long as the phone calls are ambiguous conversations based on the officers direct knowledge of the invest but as briefly counsel stated that the prosecutor's arguments were fair so if i can just touch on one of the comments that the prosecutor made was that  defendants have been touching the community with quite brutal force if there is no west side gang if there is no diablos going out and doing extortion and dealing drugs there is no mexican mafia diablos no west side no mexican mafia on the streets in that community no robberies no shootings no meth and we have the enterprise without those two gangs no gangs that pledge their allegiance to that organization to pronounce it loud and proud no mexican mafia the mafia isn't just about the made members of the godfathers or the big homeys it is about the people who are touching this community and sometimes touching it with quite brutal force no more in then the  prosecutor just reference the last remarks that were made during the closing argument saying hold him accountable find him guilty but what you neglect to mention is that in the paragraph immediately before it he again says no more so and conceding that you're guilty of count one we never conceded guilt as to any of the counts fact of the matter is the government established the mr paragon was a shock collar and again but that does not that's not the same guidelines range is the starting point and it was the accurate range in this case should have been to sixty something to i think if mr barrett was a career offender right i assume that because that's separate assume that h accurate going to rejoin a range of three sixty to life because that might buy my reading of think it's forty one point two if you have a life top for the offense of conviction any one of the i think two of the three drug convictions triggered ranges three of them be three sixty to life could be a benefit to three if he was your friend or the three of them were cracked should been one right shit and one so i wonder what i'm trying to figure out is why is there the number of correct guideline ranges harmful to you when combined with a guideline range that was lower than it should have been because i think it's impossible to say that as a sentencing court the judge wasn't looking at four guidelines and saying my gosh there are four guidelines here they're all extraordinar high three of them are at the absolute top therefore i'm going to take that into account when i decide to very under thirty five fifty three and so there should be that that's why this court always reverses when there is an error in the guidelines calculation is supposed to be one guidelines range and it's supposed to be accurate here we had four guidelines ranges it was unfair to mr paragon because it could have affected the variance that the district court decided to impose  confrontation clause issue which is the informant who is on the tape saying about mr fernandez mr fernandez was not present that evil set this meeting up i've known evil since before he was a gangster he set it up he set it up a man who was setting this stuff up with other gangs that's their argument it was a very weak case in the witnesses so the in allowing the use of this informant testimony i gather the court told the jury that this was not to be considered as as evidence is that correct that that's correct but that but then you're saying that despite that statement from the court the prosecution used it well as evidence in its closing the prosecution argued that was a man who was setting this stuff up with other gangs the only evidence that he was setting up stuff with other gangs it was the informants who do you think separately to that argument yes or no no i'm sorry i did not know i mean that's i didn't if they're saying that hector fernandes is a person who was setting up meetings really with only hearsay evidence of that that violated the confrontation clause in the end if the evidence was that he was a member of a local street gang not that he was a member of the mexican mafia that makes bringing in the this violent and it's really difficult to understand to overstate just how violent in vile boxer and re kids was where he spread out plastic sheets in his car so his friend's brains wouldn't stain his car when he executed him and he took pleasure in that you know that was totally unnecessary and that caused the fear in the courtroom that contributed to the