and perhaps the grouping issue as far as sentencing and i guess the question is what is the evidence for or for be evidence all the evidence about the moscow kidnapping and the internet fraud and the murders in the russian mafia it intertwined test one is there's the evidence that arise from a single criminal episode and the second is can the government tell coherent story without it in this case the government clearly could have a coherent story without the evidence about the moscow kidnapping if you look at the excerpt of record there's only one in the count three conspiracy the one against my client there's only one reference to the moscow conspiracy and it's at the end of one of the means of of the of the conspiracy test so i don't think there's any doubt the government could have tried case only against the extortion and l a without any reference to him certainly but it would have taken a good bit of the spice out of it and not just spice necessarily of a prejudicial nature but it seemed to help explain what was going on here too i think it was much more tangential just a simple extortion to international armenian russian mafia murder kidnapping that's what makes the threats kind of a lot more lively that gee and look what's going on over here so we mean it when we say we can do x to you again i think it was tangential to this case it certainly had something to it but was it necessary and as with the second part of the test a coherent story it was it necessary the more difficult issue for this side of the courtroom is not a single criminal episode and argument is that it wasn't we really have to conspiracies with some overlap to be sure the first conspiracy is the russian one it involves my kind is not a  here in los angeles against my client so it seems to me that it's more like there's two separate conspiracies with a moderate or even a mild amount of overlap and so on the single criminal episode  every month we're going to keep if you make sure you put some of the two of them that's correct that's correct i think there is the one at the so that my client was receive the one thousand dollars a month later i think that was in july or august but the point is  view was you know how instantly involved was my client mr the new c n n in that moscow kidnapping and i submit the evidence about her is very slight there's just the three overt acts and the count one conspiracy and those really are our means wife elmira recalling months later that oh yes she said they said that one hundred thirty thousand dollars is o on the big extortion and another ten to twelve thousand dollars on my client's extortion so again there's overlap in the middle among the players but what she was the one who was given to that was untrue if you reduce some of these people she didn't she didn't  get involved in the kidnapping of moscow i don't think there's any evidence contemporaneous at the time that my client had anything to do with that she subsequently learned she's not charged with that group but i think the government's argument is that she used the fact of the kidnapping there to make her threats really have more muscle and there's a logic in that there is but the test is that a single criminal episode and argument is that it's really criminal episodes and i'm i'm not sure she could have been tried with the count one conspiracy i suppose she could have been but her role in that is so minimal even by the indictment introduced them and that she come out of the thing he was a stranger she took of well there is that unusual evidence that how they met at the beginning of the case there's always been something a little odd about that judge provision no about it i don't think our men the victim came into this totally innocently he seemed to jump into this with some alacrity and then it got out of hand but again going back to the test is that a single criminal episode or are two separate one looking at the evidence and looking at the indictment it's more like two separate episodes assuming i'm correct on that we get the harmless error to that test is it more likely than not that this didn't have  impact on the jury on a to verdict the government didn't focus exclusively on not by any means in the in their argument but they did mention in opening statement they didn't mention it in their initial closing statement in their final closing statement and it's just so prejudicial well again taking this extortion in los angeles relatively minor if there is such a thing and bringing it to the jury all this evidence of a worldwide russian armenian mafia conspiracy with kidnapping and murder that's just so prejudicial if it was inadmissible because if it should have been four or four be evidence then it clearly wasn't harmless er r the only other issue i want to make is on the grouping at sentencing has to do with one one level i think the court and the star just flatly got it wrong the test for grouping is you have the same victim and they connected by a common scheme and here you have the same victim armin and it's clearly a common scheming indeed as they pointed out in the brief that was the whole argument by which the government brought in the evidence as not which is the receiving section eighty receiving the proceeds should the group separately under two be one point one and that the other two which were the extortion the conspiracy group under two point one my point is belong in a guideline section to the one point one doesn't mention receiving proceeds from extortion and so as the government point out is brief if it is correctly to be one point one then the grouping analysis says they must be kept separate it specifically says that but that's contingent on it being to be one point one which my point is that's fraud it's in the nature of fraud how much where the proceeds but if you look at this as a whole it was one common scheme with one victim so they should have been grouped together and that would have resulted in one point the only other sentencing argument i think maybe mr land will talk about blakely although we've heard it wasn't the side of this morning so maybe it's still premature my client got a two point two level increase for restraints the guy i say you need to be things such as  victim was taken but nowhere does the indictment allege the day that he was released and in fact the overt acts on count one go on after the date of release so he could not have admitted that the victim was held for more than seven days because it's not in the indictment the second reason is that under this court's related authority in a printed in a pending cases i plead in the face of the indictment does not admit all the and because there was no specific colloquy the court cannot find that my client made a knowing involuntary admission so that level has to follow also of course it's obvious role in the offense there was no charge of role in the but there certainly was but again we still have a problem there's no colloquy on the length of time that the victim's health there's no specific admission and there's and it's not even contained in the indictment i think if you look at the change of  made that oh we're not going to release him he's not going to be released until you come up with money and that sort of thing that is not an admission and that the victim was still being held in fact those type of phone calls went on after the victim organisation members of the organisation orchestrates and use foreign communications to sillett state the kidnapping of a family member in order to compel armin's return to los angeles and in order to get him to continue to who not only introduces our men to codefendants you're right and hopeful but provides you wreck armin's contact information his telephone number so that you recalls him an arm and has no idea how made upon ms armin's return to los angeles could be carried out in fact in united states police versus political this circuit made very clear that if the government has to prove that this defend used implicit or explicit threats to him which means intent to instill fear in this victim we look at the surrounding circumstances and we look at the particular circumstances of the victim here we have men around and pantomimes a gun to our marines head our tour they don't know whether our first alive or dead and if we are to look at whether she could carry out the threats that she clearly made in recording conversations upon arms return to los angeles and look to the march twenty second meeting where she name drops kinda my niece a relative and other known mobsters known to this victim at a time when the kidnap victim could be alive or dead what best evidence is there that this woman has the names to carry out her threats with the government has to prove beyond a reasonable doubt that this defendant intended to still fear an arm and what better evidence is there than the fact that what she threatened had already happened and was occurring at the time of those threats i'd like to beaten it's during that call four days after the meeting between defendant musa and armin where she reminds arm and your wife is also in a very difficult situation over there what she's saying to him is she's threatening him she's making sure that he understands that more than our church life is its stake here she's told him that she knows where his wife is she knows where his kids are and it's here it is four days after he's been physically beaten at a time when no one knows whether archer is alive or dead that she is bringing to his attention your wife is in a difficult situation situation over there when are you going to pay me the money argument here the district court gave a limiting instruction at the time that the judge gave instructions he gave a limiting instruction it's the government's position of the district court didn't abuse it's it's it's discretion it in as an of the hostage taking and on that issue with cement and refer to about the united states speaking first to defendant the new c in sentencing issues the primary issue that defect defense counsel has raised this morning is whether or not there was any plain error in the district court's decision not to group the conspiracy to focus on is three d one point two b which is whether or not the the crimes involve the same victim and the overarching concern is whether or not they involve substantially the same harm and in this case the district court did not play on the air in treating the separately states that you know that loss is excluded from it's and that to be one point one however is is is based of how the amount of loss of the seat of the proceeds so the measure of harm differently and in fact to collapse the two of them together goes against the general philosophy of section three d which is to recognize incremental harm that occurs in different types of harm so for that reason the harm is not the same and as we also noted in our grief the victims are not the same the victim of the explosion counts as arman the person who was extorted the victim of the seat across its account is more properly characterized as the societal interest in the legitimate collection of debt and this court and various decisions it's recognized that where there's a different vision of society versus an individual victim that it's appropriate no cited in our brief that detaining a person in a room against their consent constitutes physical restraint and that's precisely what the defendant and her coconspirators did on march twenty second to arm and when they twice refused to let him leave the room whether he was able to moscow was taken into custody by the kidnappers on twenty third and if you look on page five it notes that on march sixth march tenth on march thirteenth that they basically told our men that they wouldn't release are sure unless you cooperate with them the the obvious implication of that is that he's still in their custody and those facts are facts the defendant admitted to if you look at excerpt of records twenty one fifty one fifty seven and seventy as well as the other pages we cite in our lee decision in thomas and that decision however the defendant refused to admit the amount of drugs quantity and this court held that because he didn't get drug quantity as part of his plea call agreed he couldn't be sentenced on that basis for purposes o was made or a statement was made referring to what would happen to our tour in the fact he was a hostage does not itself represent an admission that he was a hostage because you can make the threat without the underlying fact thing through well except for the fact that he of time that he was in fact in their custody i think hopefully that addresses the court question so from that you take the the statements contained within the invite making reference to our tour of the hostages what happened to him to be him implicitly but inherently at admission our acknowledgment that he was wrong was still a hostage as of that day given the fact that it was the defendant who was saying you know if you don't cooperate with us or if you cooperate was we'll let him go i mean the defendant not have made that in fact the case and the fact that the threats against him stopped after the point at which he was released indicates that you know again corroborate the fact that he was in custody at the time the structure made and was still in custody at that time  out so that i think it's for a defendant on the scene if you don't have any upward adjustments have you calculate or dirty you know how close we are to a twenty with her criminal history category of one which would yield to sentencing range of thirty three to forty one months at this point in time she's been in custody about thirty nine months so she's bumping right up against that amount i think under this court's decision in castro you know depending on thousand and six so thirteen fourteen months oh well by some of the current release the question is if you toss out the enhancements it sounds like the government concedes that she may actually already be into the time period the potential guideline range think she would these people the serious and your wife's in trouble i think this only seems kind of in a middle ground here it's more of a warning and then a threat remember she had taken our men into our house and lived with her was a friend introduced these people you know looking for business opportunities so i think she's you know she's part of victim and park perpetrator here but certainly not the level of the other two and i agree with the government that that evidence may be if but it's not critical to the government's case if you look at the indictment there's twenty nine overt acts not a single one of them reference the moscow kidnapping there's only that one paragraph at page eighteen of the ex relatives in moscow you just take that out and there's nothing left they don't need this at all so the case if you have an indictment that runs five six pages in you only have one reference and one paragraph it can't be critical to the government's case and then you balance it with the prejudice as i pointed out and it becomes overwhelming that it should have been excluded thank you