at that point that she should have made it another time she didn't make it another time and now she's doing it and it was it was clear from the record that she made the decision to do to make that motion while she was before judge jenkins just before t posture that they were in my suggestion is that the g at that point was you have a chance to get this case dismissed we'll deal with the issue of whether it's with or without prejudice later but the fact of the matter is there was no there was court which i don't think the record reflects and i don't think that think that the defendant could have any chance to reflect upon the propriety of withdrawing this motion that had just come up when he was being told you on something else that didn't take into account the confusion but suppose that the district judge i remember this case distinctly and i do recall that  the defendants made some visits to the bar and the other one good but they were both bound up in the same in a prize and while there may be some slight differences in their culpability  let me explain why there are really if you boil down the the evidence and in the briefs you see there are six main events that are contacts between the defendants and the bar one occurs in january second two thousand bot january fourteenth three quine comes back to the bar again tells mr o i'm going to be the boss of this place and because mr chang had come on the tenth in august so that when he says we don't know who delivered the c back doesn't have any contact with her but he's seen on this surveillance camera that she buys on shank's side of the scoreboard he comes back in january tenth and the testimony there is a little is a little the sentencing range the same for both yes it was level twenty at that time of the guidelines it was the the range thirty three to forty one and change got forty one yes and your client got thirty four when you're the district judge and somebody makes a motion for a minor role of course you're going to say exactly what this judge said which is no and big you're really bugging me because you're minimizing your own role which is exactly what this judge said and this is why  chang gets hammered there both in criminal history category one if he had gotten the two additional levels you'd have been down it would have been twenty seven to thirty three if you got twenty seven you'd be out by now so that is why the mistake on its own i think it's a very very important one plus there's also the appearance which doesn't seem to bother the government in this case which was the appearance of just mixing these two guys up and not sense i'm sensing them on their own merit i mean i know people argue about whether the guidelines should take the individual judge out of the sentencing decision i don't think anybody thinks it's a good idea to take the individual defendant that in the sentencing decision and that's what you would do if you set out cares and made a misstep so now the scene of the government's response is well wait a second the judge didn't rely on the confusion the confusion didn't really play a role in the sentence because the judge specifically said i'm january first day they're both equally culpable they both went in and they both tried to shake her down that's the end of it so that's mistake because as i point out the introductory comments the guidelines set as a roll determination is to be made based on the whole conduct of the offense plus an relevant and there to look at it on its own even even without comparing it i think that really the judge reacted to mr cheney's argument that he wasn't involved in accused him of minimizing his conduct and and the lawyer tried to tell the court in the just wouldn't have had anything of that and so i would say that based on the based on the record mr chang does ask that the court be reminded for sentencing he believes that the record is clear enough that if this court were so inclined to specially given how far into his sentence he is the court might be able to actually remained to the district court with directions to give the two level rol reduction and let the district court simply make the inherently factual determination of where in the guideline range of the new guy like range of eighteen twenty seven to thirty three where you might question mr chang and and he would make that that request it's far as the substantive arguments i've got there are a few issues but i've only got limited ammunition and sign so let me go to the one of the main evidentiary issues which is if you go back and you read the transcript of this trial it's testimony after testimony about the victim state of mind the victim was afraid of the victim thought they were gang members although as you called she said she's up there with the black with fear belief whatever is perfectly relevant stuff came then perfectly ok mr chang now no look it was really a mistake think if you look at the indictment it doesn't have a complete extortion it's an attempt in a conspiracy period and when you have an attempt this court has been very clear that the victim state of mind is an important thing and it sounds like because if i try to extort an undercover agent or i try to a story you know wonder woman or one of  repeated references to her fear in the trial there was another aspect of her state of mind which came in which was her belief that they were members of the black society and the government says well you know what that evidence really didn't really do much damage because it didn't come in a way that the jury would really understand the problem is in the opening the government said she feared them because she knew them by reputation to be gangsters now wanted her direction never said gangsters but she said is before they came up to our question why we were afraid of them well because they're with the black society now the question is why go outside to talk to kwan well people would be scared if the black society would be overseeing the place so i would say that from the way the testimony came it would be hard for the jury to think that being in the black society would be a good thing it's true that the usa didn't focus on it didn't hammer away at the black society gangster thing in its closing although we did hammer away at the state of fear  closing i'll try to reserve the last thirty seconds for any last minute but thank you s you aren't the the defendant chang is arguing that the victims fear in this case and the evidence that he was in a gang and any evidence of a kumquat tree should be excluded and very relevant fear or trying to instill fear in the defendant is the very means by which an extortion is committed and so the defendant's the fact that the victim is afraid of the defendant is crucial to elements of the crime it's not only evidence of the defendant's intent but of course one can try to prove intent for conspiracy to commit a crime by proving as much as they can of the substantive crime and the victim's fear he wasn't taking responsibility for his conduct specifically minor role he admits that in his reply because we talked about where the range and he says well that's irrelevant we're not raising that we're just complaining about the court's error with a minor role well if the conduct of the defendants after january second has been so central to the court's decision about i'm not sure i would have to double check and i could do that and submitted to the court later i can't remember at this point i'm sorry but the court so you're right that may not have been an issue i'm not sure it may have  in any event i think really what the point is is that subsequent conduct didn't really make much difference to the court because it viewed the greatest aspect of the conduct of having occurred on january second and i think  about anything testimony as in the easter case which talked about the importance of minimizing any facts from goings and citing specific ways in which to do that that happened in this case for example there was no evidence  been very clear that you can't prove the recipients or the victim state of mind can be circumstantial evidence of the defendant's intent so i think it's relevant to that she the defendant's intense reduced fear and her three secondly because fear is the means by which you and by which you are connecting an extortion by inducing fear is the very means by which you are able to try to obtain money from the victim the fact that she was afraid  part three of course is from her understanding one of the extortionate demands that was the demand for more money from her understanding of what that meant of course it goes again directly to the element i mean i think the court is right that it should be done platter and i just wanted to point out i think an error in what counsel represented which was that in the record it's clear that they did take a fifteen minute break in the expressed purpose of having counsel talk to defendants about whether they wanted to waive th review and with that i would submit the matter