thank you the court my name is tina schneider i'm here representing the defended david gonzales my client was convicted of charges arising out of operation guard shack the f b i sting operation in puerto rico he provided security for fifteen fake drug deals he was convicted of drug offenses arising out of transactions two through fifteen he was acquitted of all charges arising from the first transaction and acquitted of all firearms charges arising out of all of the transactions i first like to address the court's value to give them entrapment instruction the standard for entitlement to the instruction is looking at the evidence in the light most favorable to the defendant without weighing the evidence making credibility determinations resulting conflicts in the evidence is there evidence in the record to plausibly support the defense here there was first turning to improper government inducement it's clear that there has to be not only opportunity to commit the crime but after struck plus factor which can be excessive pressure or intimidation dog insistence there was evidence here of relentless hounding the confidential informant first contacted my defendant my client trying to get him to participate and the first transaction and during those fifteen months there was evidence of persistent phone calls and visits by trial what if there was evidence testimony by mr cobb that he made these repeated phone calls and he visited the defendant at home he testified that he kept calling my client there was evidence and that was corroborated by my client it was evidence of repeated unsuccessful attempts by mr hot to buy drugs from the defendant that was testified to by mr prado and by my client there was testimony of an unsuccessful request by mr condo in february so kind of midway during this fifteen month period that he tried to get my client to engage in illegal activity your client mr c trying insistently trying to get the defendant to engage in illegal activity and in fact doesn't matter what activity no they can shift there if they're trying to in trap the defendant they can shift their focus and there is a case from this court where the government did just that tried to get the defendant to do one kind of illegal activity and then shifted into another so we have this relentless hounding that is supported both by evidence testimony by mr condo and by my client then we have testimony that during the summer of two thousand and nine my client's financial situation took the news when he lost his job that mr condo was aware of this and that the frequency of his phone calls client's testimony diverged on many points but when we're evaluating whether someone's in title to an entrapment instruction it is not a way of the evidence it is not a credibility determination is the question is is there some hard evidence in the record to support it and here there was and there was testimony by my client which is a fish and but more e instructed mr condo to ask for a list of names in the home addresses of everyone so that if anything happened they would know where people exploitation of my client's financial stringency when mr prado ups the ante and starts calling more frequently once my client lost his job and finally we have the threat that happened immediately after the first transaction so my client's testimony was i did not know this was a true going to be a drug transaction when i went to transaction number one his testimony was c said do you want to do work security with me it's going to pay two thousand dollars my client participated immediately afterwards he met with audio recording of his testimony and he's freaking out and says to cutter you can tell me what's going to be a drug deal and condos says mr eddie the drug law the photo drug lord has triggermen on his payroll and you have to continue purchased it so we have that threat now remember that the jury acquitted my client of the first transaction apparently believing his testimony that he did not know it was a drug deal at that point so then we get this a media threat by kotto to my client which leads him to continue participating in the remaining transactions now the question is not whether the evidence compelled a finding of entrap the question is whether if there was any evidence on the record that could lead a reasonable jury to find entrapment and there was and so the court erred in not giving that instruction the second introduced there said you know the the defendant there was no stranger to criminal activity counterfeiter but he had no predisposition to commit the crime charged in that to be a certain inconsistency between point one and point two in your argument which is your honor i raise a question about whether their private drug dealing had anything to do with  finish the focus bert lack of predisposition is on the defendant before the sting operation began and so the evidence that was on the record that showed of predisposition is the defendant's rejection of prato suggestion that he sell drugs or engage in illegal activity the fact that he had no past drug involvement the fact that there was a fifteen month period during which i don't try to get my client to engage in illegal activity and the fact that he did not know that first transaction was a drug deal good morning your honors me please the court is for the united states were ready to proceed i will note for the court that i was not trial counsel but i am familiar with operation card shack do try at least one of those cases and i'm quite familiar with the honor to require that the trial judge yes your honor i believe that if you review the case in this case on the circuit with respect to that hard evidence is required that i believed would leave a reasonable person to the bike was a conclusion in other words that in this case entrapment could be found by reasonable juror the cases that i have read point to the testimony of the defendant being one of those factors but that there is a requirement for some sort of corroboration even if it's circumstantial as i was listening to counsel's allocution to the court it struck me that we must be looking at different records  i think it is very telling that the testimony of the defendant at trial can be highly self serving i think in this case the evidence ample evidence of the videos and audio predisposition counsel would like this court to believe and the defendant painted himself as such as a victim of circumstance someone who was doggedly pursued and fell victim to the trickery of mr caudle that is hardly the is reveals himself to be in these recordings he claims that he did not know that he was going to a drug transaction yet if we look at the audio tapes o he first of all manifest distrust over anyone else that might be brought to the drug transaction he tells mr caudle that he's not comfortable speaking over the phone he tells them that he's more than willing to participate even though accept must have accepted his had because they acquitted him on the charges having to do with the first strike well i think your honor that we're not in a position to say that that a jury thought i think that i may have well thought that fourteen convictions for fourteen other drug deals when there was no question but that he knew that they were drugs was sufficient they did convict on multiple for them or that the government would be hosed to such a construction and the facts of this case are a good example as to why it would be the wrong rule to adopt court to believe that that is an offense that is wholly unconnected to the crimes for which it was convicted and sentenced to the extent that it should not be considered to determine he's predisposition but let's look not at the conviction let's look at the facts underlying the bribery he let a drug trafficker someone who had drugs and a gun he let that person want how is that not connected with his procl himself was a corrupt cop and you know we're not suggesting that mr corker was a saint mr call that was a dirty collop and that's why he was some effective being used as an informant in this case and mr cuomo the first calls that he made to him after he was arrested by the feds was had nothing to do with operation arch the police had arrested him the f b i had arrested him for his participation in the primary offense and the hounded him to include him in his drug business because he was paying playing the role of a drug trafficker in any event i believe that the readiness of mr gonzales babies to commit the offense is a is something and a compelling and important factor that this court can and should take into consideration when he considers his predisposition his sophistication while he is acting in this security detail and taking if you will in a leadership role it is obvious how to display their weapons he is also the one that is getting paid more than the others he is not only himself participating he is bringing others including police officers who are serving at the time to these drug deals we cannot say that mr gonzalez it is under these circumstances is an innocent law abiding citizen who was somehow tricked by mr caudle to participate in these drug deals repeated drug deals also counsel if he was so afraid does it stand to reason that he would bring his own brother pedro to three of these drug deals does it make sense that he would bring his sister along to a drug deal his best friend his barber his neighbors it stands to reason that in fact he was probably fearful of any kind of mr called he would not have involved his immediate family in these drug transactions if addition to that if the court evaluates the nature of the banter between mystical side of space and between local and between me and mr wills i dispense it is more than evident that he is not afraid at all there is not intimidation involved in those conversations there is an easy banter between two people who are familiar and comfortable with each other and mr  conviction but i would suggest to this court that there is no magic in one particular instruction over another what is important for the jury to know that these people how the convention these witnesses and that those convictions can be considered in determining credibility and in weighing the the weight that they're going to give that testimony and the instruction that was given by the honorable judge they've got a sufficiently apprise a jury of that fact ok thank you