even if there was let me talk about that first word sensible i assume you've read judge poser's opinion on this question yes i have your honor judge posner says that the operators of stash house and should be willing to pay the united states government brought them down and order to protect stash houses why is the sensible because the the united states is not merely fighting a war on drugs it is also fighting a war on violent crimes it's protecting matt in a mad merry stash house from a real robbery crew that real robbery crew in discussing in this case that the crew was put together by the government in respect way that's incorrect as shima at the first  contact that the cia has the three accorded in that phone call he doesn't say can you put together a crew that's what happened in black and black the c i asked the target simmons can you put together a crew here the question is do you have a crew answer yes is it ready for some serious shit yes this is a big thing can they handle it yes when he shows up that first meeting he has not show up on hudson brings saying i don't want to hard your crew in that case there was they kept saying you need more you need more you need more and eventually persuaded them to bring in more here this yeah i says are you sure you don't need for this and no we need three three is what we need here's the first guy i would want to get he's a reliable guy his name is baby rowdy he travels state to state jacking motherfuckers he's a big he's younger he's tough they never got that they didn't get baby ratty so they went to the next best thing they brought in little shooter little shooter is and fun dunlap and one dunlap also a member of a violent street gang also with a criminal history boasts of having committed armed robberies of a check cashing store in a western union he also participates in the logistical planning of this crime this is not an instance where the government the internet through a poor neighborhood pulled up three people who had no idea what they were said it could mean opportunities let me let me let me clarify it could mean it seems to me any robbery opportunity which might mean you know a lightly protected seven eleven and what the williams decision from this court says is that when someone is contemplating committing a violent armed robbery it's not a problem equating that i didn't say this means armed robbery it seems to me it means pretty much any robbery i'm not sure that there is a material distinction that can be drawn between someone saying i want to commit a robbery and i want to commit an armed robbery in terms of after say the law certainly punishes them differently we were  of course stash house guards will be armed and it was then the defendants who immediately said that they had access to guns and would bring them it was whitfield who repeatedly said he would bring a big gun that he would go in first prepared to knock some shit down if he had to to kill if he had to and repeatedly return to that refrain the a t f never suggested that they should bring guns never said bring a rifle and a pistol never said bring a shock and in a pistol that was entirely the defendant's playing they'd never gave them the guns to get a t f never brought them to places to buy the guns never link them up with a person to buy them these were guns that the defendant said they had and again this is a significant distinction from black in black although the defendants initially said they had guns they didn't so they couldn't get them and the a t f agent continually said you've got to get guns you've got to get guns not a problem back but as to the final question as whether the law treats them differently my point is not that the ultimate crime of strong arm robbery of a seven eleven and armed robbery  a stash house are identical the question is when a strong arm either i said robbery and i'm not sure come up means anything more than robbery which would include armed robbery which would include strong armed robbery which would include coming up to the guy and saying give me twenty five dollars which is a robbery where they'll ask if there were some threat of force but regardless of how trivial or robbery one month's time magi that hudson was proposing the question is whether at the time he says i'm looking for a robbery opportunity the a t f is allowed to investigate that further and if if the defendant here were able to prove that he had no the question of outrageous conduct was deliberately addressed and this is part of that discussion yes but there are kids as well before you mount hernandez saying again and again that rediscovering kind of inquiry in terms of whether a crime has been committed at all is two stages at which these kinds of claims can be brought there is a pretrial rediscovering conduct request to dismiss case and then there is a new trial jury question there too one is entrapment another is sentencing entrapment sentencing entrapment is also sometimes called outrageous government conduct with respect to sentencing but it's a species of entrapment that was a predisposition and inducement whereas outrageous government conduct as a pretrial stage is an objective standard that what's in the government's conduct and whether that conduct was proportional to what the defendants were doing saying you know the crime not sure i agree with you and certainly in black it's obvious that the two defenders there were you guys are dragging in half a million dollars for a neighborhood i disagree on or there was no dragging in this case at all this in this case hudson approached this yeah i not the cia approaching hudson there was no generalized offer being made and even in the case where there was as you describe it dragging money through a neighborhood in black this court found no outrageous government conduct and the monetary inducement and emerge and the monetary inducement and williams were as significant or greater than they were here so in some ways i think i have to give you the context in which i'm making these comments we of course are bound by black were bound by our case law but that doesn't mean that i have to like the government conduct i think the government is wasting resources i think it is encouraging people to commit crimes they otherwise would not commit and you are protecting the stash houses and then actually imprison these guys we've got to pay for their imprisonment i think it's a totally misguided policy o to the political branches to decide whether to regulate on forcemeat conduct which may offend some fastidious squeamishness or fins and that's about combating crime to energetically but which is not into thought a call to fundamental notion to due process and so respectfully i understand that there are some people who are uncomfortable with this technique but that's a question to be put to congress and the question be put to the president and in that context those concerns can be addressed finally i see i want two minutes left but i want to address the reassignment question because i that's also a significant issue before that you know what let's do it this way let's stay on the merits you save two minutes or a vote on the merits it may be justice it may be efficient to address the and with respect to the laws of law in your follow up that's right did in his ruling follow the ninth circuit he did not overrule or ignore the ninth the black case he he did not the black ace though does set out tests and judge wright did go through those tests and came to a conclusion that based on the facts of this case the test for men so it wasn't a miss application of law he wrong law he used the correct law of the current panel law and assess each of the elements in black and found in favor of dunlop the ninth circuit in black the same thing actually different judges on the on the on bop review reviewed the black tests and came up with different conclusions using the same facts so it's not that the law is necessarily wrong it's it's on these facts i would find black even in black themselves the judges were hesitant they said where we were sort of swung over the fans by the evidence that was before them and so they themselves against a friend of his he he actually was living on the street in his car when he was picked up by whitfield to go to a basketball game this day so he was picked up at the end of the of  the involvement and then while he was there he was questioned and brought in by the counsel but what standard of review do we use for going over the district court's findings with respect to the black factors i believe it would be clear it is  he dealt with the facts that were before him one of the facts before him and this goes to a different issue as to who called who there's a great dispute on who initiated the contact with what the government says to you and in transcript before you hudson in his sentencing is asked by judge wright long after the fact without you know the government calls itself serving but long after the fact stands up at the sentencing hearing and is asked by judge wright all right i want to know really what happened here why did you do this and he said you know i had a longstanding debt with this guy he called me up and said wanted to deal with this so his evidence can't very different it's like i owed this guy some money of the cia and he wanted to settle and so i i i think sickly went along with what he was asking for to satisfy him it wasn't the facts of this case are there in judge judge wright explains that he in his judgment that found he also in terms of their propensity he also called the suggested that hudson was a nickle and dime thief he wasn't a small time thief so it isn't looking for people that are in an enterprise or have a propensity this this what this type of sting is ok if you're attacking an existing enterprise and certainly reverse things are always legal in that aspect in this case however this is an the top of my car i finally figured out that anyone with skis on the top of their car coming through auburn five miles over the limit automatically got a ticket because we were an easy target i was not going to shoot a car when he stopped me the reason i say that yes it's a lot easier and safer for the government to operate one of these reverse sting operations against small time unsophisticated would be th big time operators they're picking on the people or at least evidence it on the people who are not sophisticated who will fall for this and will not be dangerously out of the government i see my time is running out one last point is you the twenty dollar bill example during the hearing in the transcript judge wright said if i was to send a notice out to compton that we're giving away free money here this courtroom would be full so he used that as the same example that you did in  black upon i which is my knee and i serve to this case well that the in this case i would submit that you could argue as judge reinhardt indicated that there was an attack on the part impoverished in this case which wasn't the same and in the black case i think judge reinhardt said what we've got to be concerned about is you could start doing this in impoverished areas and that's what happened in this case so this case factually went beyond and address the concern that judge reinhart mean is that this this is different in factual basis because it does go beyond the it gets into the discrimination it goes beyond you mean goes after  broke dude so there is there is evidence the judge right could have found you think that's sufficient to for us to say wife is in control this case these people were shown to be impoverished factually yes i think that's an argument there's also the ability of well i won't get into that in this time period of i would say not following black but that's a whole different subject of comments kind of echoed what's wrong with these cases and i think a big part of it has to do with the fact that the government sets the parameters of the crime the inducement that's being offered and the arbitrariness of what's going on here because the government sets the pram owners of the crime they have the ability to remove the obstacles that usually face defendants in these types of cases and we end up with a situation where a defendant is facing a sentence which really is grossly to produce proportionate to his own culpability or the types of crimes that he has the ability to commit because of the way the crimes are structured defendants are lured into a really offensive  honor i think it also goes to the nature of the government's participation in the crime or black factor three the government's role in creating the crime of conviction so although yes it is a sentencing entrapment argument i think that that's one of the factors that judge wright considered in dismissing the case and as i was saying we have a situation here where they are setting the scenario removing the obstacles offering the defendants an opportunity of a life time for committing a crime in two hours that's going to have to leave them set for life and these are as the court has alluded often very unsophisticated individuals who are being offered an opportunity that they may never see again and the officers allay their fears by going to what you know what would be a why defendants or someone is concerned who's going to rob a stash as well they might be concerned about are there are people in the insufficiently dangerous to deter them from doing it from a truck thinking they're going to do it yes or no and as i as i state i think that at least in my experience from the cases that i've handled over the many years that i've been in practice we have a situation here where the government structures the charges in such a way where most defendants if they even choose to file or pursue the outrageous government conduct claim are often looking at fifteen to twenty five year mandatory minimum did not address is whether they are infiltrating an ongoing criminal organization and so it seems to me that that is the type of fact which would maybe justify that way out from under black well your honor their black is if if that's where the quote is from just let me speak about black a little bit because i think that black is a little bit different than our number one in black you have the testimony of a confidential  crime and he assigned everybody roles and so we don't have the situation in the black case where if i can look at the you know the language from the case what the court consider there was that once they s rolls in that sense this is very different from our case because that's not what happened in our case in our case it was the you seize and it was the c i who basically directed that everything even when we had the one month delay where they said oh you know all the drug dealers are going to be in mexico so we're going to put this off i mean if if this was really a screw up stash house robbers why didn't they you know commit the crime and during that period of time or find another stash house to rob no this was that when you have to finance who are faced with these extraordinary inducements that just doesn't become it's not reliable evidence they were actually predisposed to commit the crime for which they're being prosecuted and we have a situation here be to say i understand your honour's are uncomfortable with this investigative practice as you've acknowledged black controls and leave it at that respectfully and humbly i would like to try to change your mind at least a bit about the crime itself  first my opponent stated that unlike him back in this case they targeted poor people that was exactly backwards in black the evidence was clear that this yes i had been sent in the poor neighborhoods knowing nothing about them other than that they were poor neighborhoods there's no such evidence here and on that point i want to return some of that you said judge fletcher about the carville quote about driving a point our bill through a trailer park and again i want to say  just disagree with that sentiment quite strongly and judge wright said the same thing here about if you put money in a poor neighborhood anyone will jump at it it's just not true that poor people will commit crimes sure that i would agree that anyone would jump at it but i think a lot of people would jump at it too otherwise are not going to commit an armed robbery of a stash that is a very different proposition than what judge wright said which is that no one would say no and you can only  if you have has an interest in not finding dangerous people who are going to threaten them that is exactly backwards i think you may say other things about the a t f but their bravery in doing these undercover is a man's whitfield said he was down to shoot undercover officers are operating in a very dangerous environment and they do so bravely and with dedication that doesn't mean they expose themselves to any more danger than necessary absolutely right your honor but the first and strongest reason is the handling of this court's order that an arrest warrant issued for don lap faced with that order the district court instead met with dunlap outside the presence of attorneys without notifying the government without a court reporter told him not to surrender himself to instead remain at large for forty eight hours and then based on that ex parte off the record communication said that dunlap should be released again  i do think it is extraordinary obviously i don't have close to the experience your honour's have i've never seen anything like that whether when i was clerking or at the prosecutor and civil practice where i represent party would meet ex parte with  the first the government gives the court order from this court saying arrest on mine the judge retires chambers and reviews the order comes out holds a four minute hearing saying that that order is cruel and unusual and outrageous and you know now i'm dismissing as to whitfield and we'll see what i do about releasing with the old the judge retires back to chambers the courtroom employees because everyone assumes proceedings are over apparently i was in court that day apparently dunlap was there i certainly didn't recognize him or see him apparently dunlap remains in the courtroom and presumably approaches the c r d other now we're just speculating and says i'm here to surrender myself maybe he approaches the marshal in the court room with blue coat and says i'm here surrender myself then and you better show up presumably he says something like that and then forty eight hours later dunlap shows up yeah that's more useful and simply saying x party contact i was using short him because i thought we laid  it out pretty specific so the second and i can talk more about that i just want to make sure i hit the three points the second is when during the hearing on whether to release whitfield in dunlap on bond or as it turned out without any bond the court's as the presumptions don't really apply in this case because the court has it on good authority from someone who ought to know that the defendants aren't looking at a lot of time  i think that that is any reasonable observer would say that that is the degree of prejudging of the sentence particularly where the defendants are looking at mandatory minimum sentences that's also significant that when sentencing hudson the court imposed a very very lenient sentence far far below the guidelines and said that this was based primarily on the comic of the government not the defendant's characteristics the nature of the fence so such that i think the comment that they're not looking at a lot of time takes on more salient is finally when the court said in response to you should follow the blackness and don't worry about it i go my own way that's why we call this luck of the draw now i appreciate that that is an off the cuff comment i also course went to law school after the we go realist movement the critical legal studies movement i've watched confirmation hearings that made clear that many many people believe that the legal mccune talked about in her article that we cited to the court and finally the smaller factors would just be the court's repeated refusal to issue a temporary stay so that the government the peel requiring several mergence used as from this court that the court recommended how film hudson should seek relief and pursue a spontaneous field on for a hearing for release and then the tone of the court's order although i think that's a fairly minor thing thank you to respond whether split time to will go two and a half each then under forty five minutes don't yes thank you one of the problems in this application is the procedure which the government used i know it's common to ask for that appeal but  they didn't go to the judge and ask him to recuse himself so that the judge explanation his reasons why he wouldn't so that we could analyze those reasons were left to our own imagination an understanding of what took place to be able to respond to his comment so the government i submit takes his comments out of context and i and all i can do is explain what i think he met with respect to  the i'm going to go my own way it was encouraged at that time because there was an on bond hearing before this court at the time of the hearing so at that time there there wasn't a final consideration of the of the black case that the second one relates to the government's arguments that you know so i ought to know on what the sentence should be and not related to the application for whether he should be released and there was comments about him not being a flight risk and and the government argued well there's a presumption that there's a flight risk so they are counterargument as well in this case here this this judge has already sentenced mr hudson to only five yourself the  idea in which you and hudson's and what's mine right or wrong was not was that he wasn't going to get that and when he says you know i'm the one who does the sentencing that's that's in every case that sentence  defend case sentences all the defendants and has to sentence defendants first and so there's no bias because they previously sentenced a codefendant in fact one of the factors required to sentence a court attendant under the guidelines is the  disparity of sense so him having knowledge of what previous sentence he's given hudson is not in itself a bias or you're not cutting into  coffee shop or private me requested a bail hearing a filing was made two days before i think what happened was a clerical and calendaring error there the come calling being called in for a bail hearing was in response from the application to file for a bail hearing and not anything that the judge so spontaneous did it on his own as acting as the government contends as an advocate the other issue that i believe that shows the judge can follow the lawn be impartial is the fact that when i initially filed my motion to withdraw i the motion it was not until the motion was renewed later on a different care and that the court granted my request there has been no showing that he has reached health trend or unwilling to follow this