morning me please court when shane hare first met law enforcement on the ninth of may the law force knew nothing about him not even his name when law enforcement arrested him on the eighth day of the relationship on may sixteenth law enforcement had undertaken no further investigation and sought no further information regarding mr harris the simple fact is law enforcement's conduct in this case is of their criteria for selection in the district remember which has produced thirty two black and is no other defendants i think it would be directed to the policies in place in the district  maryland we know nothing more than that one page of what was used in the district of maryland whereas i submit in our brief we assemble information from many other districts where that fishing though you have some burden before you can get all none because they were absolutely unknown to law enforce because i think it's the only way to lay out the claimed selective enforcement not selective prosecution we're not yet at the point of dislike to prosecution and i think that is a completely different though than the separate issue should be at least some kind of maybe a high burden but at least some brown the target of the sting about whom they did no investigation remember they have one correct big one confidential informant who would have served to sustain a warrant right there's no record concerning the rye believe them or of the informant there's no record provided concerning whether or not this informant who provided false information in the past had been used reliably was being paid nothing they have a person who says bell was involved and has a crew and that's all they know so based on what they  know about bam bam was approached you know barry went out and developed this crew of which mr hare was a car is that correct no oh ok i'm sorry then correct me bowden was offered the opportunity i think it's fair to say from the transcript of the first meeting don't go too far now i want you to what is wrong factually with the question that judge big saskia you can't say that this is the way you want it just wait one second to be a member of the crew in the terms you use and you can correct me if i didn't mean that they are hardened criminals she she meant he brought to the paper to the table people appear to the government more willing to do along on most impossible burden to climb that's the way the war works you say that the a t f can't do that they can approach somebody they think might be willing and ask him if he's willing and then ask him if he can bring the people and he bring some people they can suggesting the predisposition can be attributed to conduct after you meet the government predisposition as i believe it's judge kozinski says the palm decision is exists prior to law enforcement approach to a particular defend ant that's why it's called pre disposition and then can a manifestation at the time that someone first meets with an hours or that that could the their conduct their manifest a predisposition of course  my question way earth is not the facts in this case but i guess my question was and now walk through it again for you can't evidence at conduct at the first meeting be evidence of respect but we your scenario short of the facts of this case in a crucial fashion do with the facts of this case i was asking you about your position on predisposition and when and how it can exist and if it can exist before the first meeting with the officer you say it cannot in any scenario i suggest to you based on my question and what most people would think is the appropriate answer that you may not be right about that but as i mean you can argue it the two blowers your honor with respect  as a matter of law i think would be the facts even more egregious than those in this case i think that there is certainly an argument that this is entrapment as a matter of law to the point of seeing a dismissal of the charges if that's what your honor is asking about certainly we got the entrapment instruction from judge has now a trial i should know i wrote it because there is no instruction in the fourth circuit or in the sand died completely addresses the question but i think that it is difficult to parse a marriage governmental misconduct and travel as a matter of law when we have the rather shocking facts involved in this case people who have no history for doing this kind of crime no prior involvement no nothing no one absolutely uncontroverted the government does not makes no effort to find out who these people are the fact that they're here for profiling as much as the else you associate with we think he's a criminal we haven't even established that yet they did no investigation of his record to confirm what the confidential informant told them do we have anything on entrapment in front of us is there anything on respect the fault if there is one if there is four to be attributed rests with me i was trial counsel i wrote the entrapment struction i did the opening i did the closing if i couldn't convince the jury it's on me i can't suggest otherwise most respectfully your honor i just think the jury was that the jury properly instructed may have come to a different decision with more information and that's the information we sought and were denied and that's information inserting the conduct of the a t f as to how they got to thirty two black defendants and nothing else in the district of maryland and a district which is only thirty percent black with regard to a crime that's committed nationwide only thirty six or thirty eight percent of the time by black defendants according to the sentencing commission's most recent statistics are the judge did g issues of entrapment and selective prosecution the question that mr o'mara raises concerning the defendant's predisposition is not the issue with regards like the prosecution his concern that the jury was wrong which is just being pointed out he hasn't entrapment issue on appeal so it's got no relevance here but the discovery a selective prosecution doesn't there on the issue of predisposition with this minor minor representatives want to find out what was in the minds of the a t f agents that doesn't tell one a black man who has no predisposition but you use money and other things to get them to do things that you want to arrest them for i think you might i except that argument but at night that's how his argument goes o argument not to the jury but to the court that we shouldn't be going to the jury isn't that what he's oh you did your honor and it does by the way some of that does seem to blend into entrapment and and no i never going to the jury he saw it last at the jury but isn't that that's the argument he should be making if his appeal is like the prosecution my point of your honor is what is really arguing is entrapment he talks about predisposition and i do want to just briefly point out that we respectfully submit the fence is wrong with regard to his interpretation of the need for predisposition jacobson we don't believe in any way that case stands for the proposition that a defendant needs to be predisposed based on information known to law enforcement before law enforcement comes in contact with the defendant in fact the issue predisposition which again goes to a jury issue and travel not just like the prosecution but that issue your hon allows the government introduce evidence that would tend to show the defendant's predisposition and his reaction to the inducement his evidence was predisposition it does not have to precede the interaction with law enforcement and so your honor the i just want to use one of the issues and that is if you were found a logic of the defendant's argument particular regarding mr hair what he seems to be suggesting is that even if the government had it properly predicated sting investigation which we submit we did and that it was appropriate to target mr boone and tell him to bring your crew members there when mr hare arrived at the meeting and represented that he was a crew member the government should have told him to leave that's essentially the argument th it always seems that a difficult issue not maybe factually difficult but difficult how to handle would be when somebody a service or alleges a very agreed just issue such as selective prosecution or really selective enforcement and we heard we heard he just said that in the world profiling but when you do that and then they claim the government and th undertaking its job using improper facts to enforce a law course the next claim is course we don't we can't be sure exactly what the government's doing until we get to review what the government has done and that's why the court has a look at what the burden is and what the standard it has to address that for me understand my point don't you if somebody goes your honor as a district judge trying the case it's clear to us that we believe that they are selectively enforcing the law they're going after poor people but people fill in the words poor white people people live in this neighborhood and and judge goes ok government govern goes absolutely not yes you know and you know it's always a time  need to know more about why the government does it for us to be able to make that plan absolutely i think it's fair to say that almost every defendant feels that they've been prosecuted unfairly and would like to come and prosecute somebody else but the laws quite clear in this n derive your honor i think the most articulate the most eloquent explanation comes from justice powell in a way persons united states rediscuss is the reasons why the presumption of regularity attaches to government conduct and he points to two categories of reasons trafficking so the record reflects that they had evidence of that and of course they turned out to be right so i don't really know what's the basis that would be one thing if they turned out to be wrong and perhaps this tomorrow would say well look they felt they had the wrong guy wouldn't make any difference we submit with regard to this case it does undercut the argument that he's raising but the fact that he have to follow the protocols with regard to that initial defendant and approach protocols are sealed in the record though i believe  thousand and fifteen and it explains the protocol that they went through to determine that this was an appropriately predicated investigation with regard to the lead target and of course they don't know who's going to be brought in who are the members of the crew but at least that lead target we submit they did follow the protocol offenses argued here that they did not he has an identified which protocol they violated but we believe that they did in this case follow the protocol in determining that first the fan it was probably predicate now it's our position your honor the even if they had not followed it if they didn't have a protocol that still would provide a basis for selective prosecution defense but it does in this case the fact that they did follow protocol i believe is further support for the premises the principle  government is entitle to the presumption of regularity there's nothing in this case to suggest that the government did not operate above board and accordance with appropriate constitutional constraints you know this is that the gun was possessed in furtherance of a drug trafficking offense which would be an independent basis to uphold that conviction as well as a crime of violence so based upon that your honor there couldn't be plainer because the result would have been the same either way but w marada that here five think you are in the midst rosenstein was not counsel record his misunderstanding of the record blow a trial i should say his misunderstanding the record blow is perhaps understandable who is crew was composed of how many people were in the crew they never established any particular crime that he had been involved with with any of these individuals or any other individual he made representations on the best lawyer in the world taken on because that's what they did it's simply not truth they undertook any investigation to determine that these people were part of a crew or his crew and that that's the uncon unreported opinion in us we davis by another judge in the district of maryland and they describe how the eighty a follows a protocol in that case they have a confidential source who names three individuals as armed drug traffickers and robbers and members of again sounds bad the confidential source knows this because he is a member of the gang as well and has been providing information to the government for a year that's following the protocol i should know i represented one of the three people in davis when i saw that citation i fell over laughing that's exactly what they're supposed to do oh i certainly filed a motion regarding the entrapment if you in that case and my client and my advice to complete because that's how it's supposed to be done he's got a history of this he's involved they got information he's screwed you can't put it more clearly this is the exact other side of the coin if this court will not reverse for the governmental conduct in this case when will it they do no investigation and they bring in people who have no history for this the government in your honour's appear to be focused on the question of predisposition there is no disposition until the money is dragged across the table in front of them isn't the second page of the transcript of the very first meeting on march ninth involving my client the very second page of the transfer of these page seven forty one enjoy appendix and special agent rogers is talking about bricks of cocaine in multiple numbers twenty five thirty thousand dollars apiece five were more bricks and then he from there the numbers go up by the end of the day he's talking about fifteen to twenty the simple fact is it doesn't matter what you r disposition is going in if there is that much money offered to you you have no money you have no opportunity that is outrageous governmental misconduct by itself to offer that much money to someone you have no reason to think would otherwise be involved until you lay that in front and at that point on the second page of the of the transcript the very beginning of a conversation that stretches over nearly thirty pages so i suggest to the court you cannot believe there is predisposition because any question of predispositions was washed away by the amount of money a life changing amount have a constitutional presumption and privilege to be accorded the prosecution nothing of that sort applies to law enforcement law enforcement can be cross examined and investigated and is accountable to the court to the government and to the defendants for its conduct and that's the reason we are talking today about selective enforcement you have not told me you heard me put forward selective prosecution because i don't think we're there yet but as a selective enforcement and what the a t f is doing when they bring the ca attorney's office regardless of what they're doing or not doing to vet the a t f but the simple fact is when the they come to the u s attorney's office we think their goose is cooked they've already done everything when they could do that's wrong they could have done anything more wrong in this case short of putting out a dunderheaded one of these individuals saying you will participate with in a way wade about that they could have approached people just on the street or going to  it's not but i think they're obligated to find out who is involved with to ensure that people are not ensnare the unwary innocent the who is lured soley by the prospect of money who has no predisposition because it's some point you can buy somebodies virtue with everybody that's absolutely correct but that's not the standard it's not the everybody at some point there's enough money on the table the people is such that you invest where you might not ordinarily and asked your honour's question it's a hobbs act conspiracy and this court's authority makes clear that a conspiracy cannot operate as