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 judging just before trial began there was no indication that there was any intent on her part been a reason for that part of her calculus may have been look at even if i gain any dismissal there is no requirement that it be with prejudice i understand government could start all over this entire process this could be go away and i've got a the defendants made some visits to the bar and the other one good but they were both bound up in the same inner prize and while there may be some slight differences in their culpability her to january fourteenth three quine comes back to the bar again tells me i'm going to be the boss of this place and because mr chang come on the tenth and i get to that one he says we don't know who kwan comes back doesn't have any contact with her but he's been under surveillance camera that she buys on shank's side of the scoreboard he comes back in january tenth and the testimony there is little is a there both in criminal history category one if he had gotten the two additional levels you 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 is a very very important one plus there's also the appearance which doesn't seem to bother the government in this case which is the appearance of just mixing these two guys up and not send some sense seeing them on their own merit i mean i know people argue about confusion the confusion didn't really play a role in this because the judge basically said on january second 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 the sentence i should have cited that to help the court in the court does have cases where it's actually reversed denials of role reductions where the district court 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 remain and to the district court with directions to give the two level and and he would make that that request as far as the substantive arguments i've got there are a few issues but i've only got limited ammunition and time so let me go to the one of the main evidentiary issues which is if you go back and you read the transcript of the trial it's testimony after testimony about the victim state of mind the victim was afraid the victim thought they were gang members although as she called she said  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 side with stuart an undercover agent or i try to a story you know wonder woman or one of charlie's angels and she's not afraid in fact she beats me to a pulp that's not a defense to the tenth case because what matters is what i did and what i intended not how the victim reacted to it here in the court looked at the other way around and you have the victim repeatedly repeatedly testifying about her fear of the defendants she was afraid of things even before they came up to her because she thought they were negating she was  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 one of her direction ever said gangsters but she said three times when you look at the sites in the government the government's excerpt of records the supplemental sixty seven seventy two and eighty two the full q and a you get you pick it up question why did they attract your attention answer because the people from the black society this is before they came up to our question why we were afraid of them well because they're with the blast site now the question is why do you go outside to talk to clients well people would be scared if the black society would be able to seen the place so i would say that from the way to elements of the crime it's not only evidence of the defendant's intent but of course one can try to prove an attempt or conspiracy to commit a crime by proving as much as they can of the substantive crime and the victim's fear error what what the court said there was that this been reiterated here that for him changing it was the wrong place at the wrong time and that's significant to me because i fully believe that it's completely inconceivable how the confusion of the two persons but i guess the second reason that the court gave the high end which was the understatement of strange criminal history he had had many brushes with the law many many arrests for various and different offenses like that which kwan did not have the same extent of the criminal record and so that and the cha is the minor role he admits that in his reply because we've 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 i'm not sure i would have to double check and i can tell you that in some minutes the court later i can't remember at this point i'm sorry  you're right that may not have been an issue i'm not sure it may have then but in any event i think really what the point is is that subsequent conduct didn't really make much difference to the court  aspect of the conduct of having occurred on january second and i think that's almost any kind of conspiracy i don't think it means the court didn't look at the whole course of conduct that was just saying this was just trying married and major focus of it and the fact that you were equally  about anything testimony as in the easter case which talked about the importance of minimizing any facts from goings and sidings specific ways in which to do that that happened in this case for example there was no evidence about what the because fear is the means by which you and by which you are connecting an extortion by inducing here is the very means by which you are able to try to obtain money from the victim the fact that she was afraid to demands that was the demand for more money from her understanding of what that meant so course it goes again directly to the element of the crime and finally i just want to say one word about the speedy trial can consider it you know there's not a clear if there's not a sufficient factual record to review it on direct review and with that i would submit the matter