would submit that any intelligent layman would conclude from this is how can this be we have a two year sentence for a first offender who pla chemical than a remote area that does it where no one virtually no one lived these were barrels that were specifically designed to prevent spills there was a small amount of chemicals that it's filled but the record establishes that this was accidental this was a crime that was intended to not to pollute the environment to damage the environment put simply to shift the cost of disposal shortly after that happened appellant was arrested by riverside county he was prosecuted by riverside party a lawyer who competently represented him and reached the resolution which involved that matter five years later the federal government five years before the federal statute of limitations expires entice appellant for exactly the same thing to introduce that conviction in connection with the indictment in the case which had unrelated charges which involve the operation of a chromium plating prisoners in compton california which was completely on riverside county property the only victim was riverside county there was no damage to the environment and there was no continuing residual effects from the nature of a then that comprises now are you have the federal government taking a case in which it may have had some technical jurisdiction but had but in cluded it where it had no real interest for the simple purpose of prejudicing appellant in his trial with regard to our related events and it did that by  and then what it did was it argued to the district court that its own parish policy which would have who normally precluded a success of prosecution was not applicable because it was a responsible and had to make the decision to allow the corporation to plead guilty and i think when you're dealing with a party in civil litigation you know they can say anything when you're dealing with the party which is  forth but legally what can we do about i mean that that's the problem that well i think question we had a little while ago about the human are and i'm not sure we can do that know and i think what that the to mean is that everyone reading these facts understands that the system has this character and this is this performance and that there is an injustice how specifically well during the five years first of all the credit card the merchants this credit card receipt this appeared ok and according to when that happened it happened within six months of his of the transaction according to the record so you know if this had been eight months after instead of five years after he still would have had that same problem that's correct but the prejudice doesn't necessarily flow from a five year period the the length of the period is not necessarily significant it's a factor but this particular piece of evidence was absolutely critical and determining whether  year statute of limitations as being i'm due to lay and yet the same prejudice would have occurred and i guess what i'm trying to understand is that the sort of that you're saying on the one hand it's the drawn out nature of it it's the almost at the end of that five year period nature other with six months or five years is relatively insignificant in the analysis of whether or not to grant a reverse the conviction you have a situation where the critic or we see this last there is a declaration from a witness you know who says that appellant was not in riverside on that night you have the barrels which were capable of i think a print showing you know keeping fingerprints on them the evidence was destroyed fairly close to the time so i guess i guess what's troublesome about that is almost entirely your and your evidence went away very soon after that after the incidents in question and contradicted the testimony of the agent whose with all the evidence destroyed he was the only one who was providing evidence about the event and for example in the record the of the event the other piece of evidence that did not disappear was course the witness who was around for a couple of years before he reeled hated to mexico and he put in a declaration i think the court invaded the providence of the jury by deciding that he didn't think the declaration had credibility that wasn't the issue the issue was that there was never a witness who provides certain amount of information he's gone i don't think it was there are any admissions and those documents there in the record i just don't recall any there are the sensing issues and i'm kind of running out of time i don't know what people are going with that clear the judge the district court said that this was a weak case in the extreme with regard to the codefendant and the only testimony that came in with regard to the co defendants participation principles of justice now the defendant's complaints about actual prejudice fall into two categories the first is the type of evidence that's ordinarily destroyed during the course of an investigation and that includes the ph samples the barrel soil samples now the defendant argues that he was prejudiced because they may have exonerated him but the defendant's arguments are nothing more than speculation and under the case law this is insufficient demonstrates athel prejudice specter the second category of evidence witness testimony that's real and the defendant submitted a declaration from france which can be found at the exit of record one twenty eight and one twenty nine he would not have testified in a rule fifteen deposition and in fact the defendant never noticed any question and even assuming that the steve was testimony was unavailable and that it was lost the defendant cannot the defendants activities and finally the declaration did not demonstrate that had the government filed charges earlier we would in fact have testified on behalf of the defendant in this case  the counsel argues here that the government's motives were bad and that the government somehow it's industry motives and bring the charges it just of course expressly found that the government had not purposely delayed in bringing the charges i also know that although it's true that in the inquiry that the men inquiry pretty indictment dilemma straight that motive on the part of the government what the defendant really complains about is the destruction of evidence and missing evidence and under the young blood line of cases the defendant must show that the government acted in bad faith and failing to preserve evidence and that clearly was not the case here relationship with one another and yet they gave consistent testimony that the defendant said i am concerned about this denny's receipt i'm concerned that this will link me to the dumping in the desert and i don't th excuse me show the charge at denny's the american express statement show the charge attorney and the defense did have an opportunity to cross examine both ames and well during trial if you read the record there's lots of evidence about their motive to live there there are history with the defendant the history with one another this fight over a cat all of that demonstrates that in so far as those ex girlfriends had a ok yes your honor and the district court recognized that there were two different standards when he made the finding he said although i found that no reasonable jury could find beyond a reasonable doubt that when i was a criminal participant i find the relatively contained and the relatively loss of verity of the actual contamination went down when we departed two levels under application five other parties agree that for the enhancement to apply there must be an actual contamination actual contamination in fact your honour's it was fortuitous that the investigators found the drums as promptly as they did they were located in a remote in a remote area in the desert and therefore the fact that the enhanced defendants offense level for transporting and jumping on permitted sites although this circuit has not reached the issue every other circuit to do so has determined that there was no double counting and the government be clear on the record when the government says that the property testimony of lalla names was that appellant they said that appellant had committed this crime with rayna that represents the statement of the prosecutor as to what they would have said if they had been called to the stand the only testimony in the record with regard to the management is the management issue is that is the testimony  who testified briefly as to a june eleventh nineteen ninety seven conversation that he had with with ames and that was after raina had been acquitted  the trial continues so the record contains no testimony from wow and aims with regard to the air issue in other words the point was not did not have an opportunity to  it is there is no testimony from our names on this issue of management directly they testified only in the government's case in chief at the time when the court excluded them from testifying about statements