yonder we believe the record clearly demonstrates that mr alexander was not only enthused to participate in criminal activity we also believe that the government failed to show predisposition fire to government contact what is clear in this case is that the criminal intent started with the government everyone agrees that there were several conversations that took place but for the august fifth phone call it was a first before recorded phone call but we don't agree to as to what transpired during that time mr alexander main hands that the government agent approached him at the cage at a casino after he won ten thousand dollars at the high stakes table is the fact that undisputed after the initial conversation the two began running into each other at the casino having conversations about gambling mr alexander represented that the government agent that he was in the car business and the government agent declined to tell mr alexander what he did for a living also noteworthy is the fact that the government's agent gave mr alexander an alias now this is significant because the government agent tran was a pretty high profile drug dealer at one point so it's feasible to think that he had he given ms actual name he could have him and learned who he was and maybe the government syria of the case or what was presented at trial might be plausible but that didn't happen he gave him an alias so that was  what's preserved for us other than plain error is really the jury instruction error right i would agree with that agree that ok so then let's maybe turn to that in your position is the extra sentence that the district court inserted at the government's request is inconsistent with the supreme court's sherman decision yes i do believe it's inconsistent with the sharon decision and that's an old decision rights records issue so they last forever until they tell us they don't but what's the best circuit application of sherman that would say this statement to the jury that they may consider a prior conviction is an error of law i do not know the answer to that question your own i didn't find it either but i feel that i don't i don't know the answer that question we have strong sherman jacobson and rightly the decision is this is for the jury and it's got to be will over bore no predisposition we're looking at the predisposition problem and in your so i find the sharing has to be the closest case which is why we cited the sherman case but the language here didn't say to the jury you can consider his old conviction only and then boom he's got predisposition it said that can be a factor obviously there is one factual difference between the two and that said mr sherman was motivated by empathy by clearly mr alexander was motivated by self interest however that set aside i think what what's relevant and what's similar in the two cases they were both targeted by the government for a particular witness and he had a problem the prior substance abuse problems approach numerous times three or four times by the government agent trying to get him to get him drugs you know playing on his empathy trying to get him to do that in alexander's case he was targeted because he had a gambling problem the government tran the government agent was trolling casinos looking for someone to try to not only work off his brother sentence jury h is a predisposition mr allen if it's if it's if it's i understand what you're saying and i've actually had this conversation i understand what you're saying with respect to that there's a difference between it being in and because the defense has to present on the defense's direct because he testified so it came in but whether or not they could consider that his previous positions really the issue ok and the bottom line is there's no other evidence really here a predisposition mr alexander had been out of the alexander he wasn't a target of any investigation part of being coached by the government they hadn't identified him as doing anything he wasn't doing anything it was a legitimate business and had a gambling problem again tran the government's agent was out at the casino based on his testimony trolling for any person that he could find that's what the government interested him to do go to the casino and troll for people ok that's where the criminal element hangs out go to the casino he targets mr alexander one who knows he has the means and two he could see that he's a regular at the high stakes table he's losing thousands of dollars at a time winning thousands of dollars at a time and he clearly is not a very risk averse person and clearly ultimately in the way this was presented to mr alexander was a quick business deal ok with respect to ok not only did he say finally after approaching him three or four times i have his oxycontin is the hottest thing on the market mr alexander said i don't have any way of moving this he offered to move the drugs for him which brings me to the sentencing entrapment issue i understand that you all are reluctant to acknowledge sentencing entrapment but i will say this case apart from the other cases in the circuit is that very fact not only i understand that merely you know increasing the amount that must be purchased by four hundred percent and driving the price even further down may not be enough for you to recognize sentencing entrapment but i will say that offering to move the drugs for the target or the person that you've targeted is outrageous and egregious government behavior and based on that your honor with respect to the sentencing entrapment your steve and i believe is that it was the first circuit and in that case you said you know looking at other cases that you know in order for you to find it you have to find outrageous government behavior and i believe going that extra step task force agent to work between the state and the federal government executed search warrants on both of these in the state and the federal government in both of those cases ok the federal case was disposed of i believe the guy he pled guilty  center in december two thousand and eight he was not charged in the state case until september two thousand and nine he went back and forth to court until about july two thousand and ten the case was open at the time he testified in this trial the defense in this case became aware we could actually find the case file they could find the minute they indicated that there was an open case but couldn't get the actual case file on it and conduct charge in the state cases in the it couldn't come in because you know actually know what happened was at that point the state represented that that was to be soon into the federal case because that's typically what happens and agent and they sat there in court during that hearing and said nothing ok he knew ultimately again as you as the government so aptly pointed out in the closing argument this case comes down to whatever transpired prior to the initial recorded statement who you believe mr alexander or mr tran and the bottom line is because it comes down to that this is a cumulative maybe the underlying facts of what happened or cumulative but the fact is it's impeachment based on bias and self interest and the fact that there's something hanging over his head prior to him testifying not only that he did not tell the truth gershon of what happened to the jury why do we know that because now before you we have the entire record including the grand jury transcript and what i will say is that mr him three or four times i one of those times he said that high trail told him i have a guy in california they can get anything agent out me confirms that this happened in his grand jury testimony ok so that tends to tell you that mr alexander's version of the effect of version of what happened is actually plausible and actually happened you were looking at this as part of the discovery that gave you his criminal history that included this pending state case and it was represented to that i wasn't trial counsel but it was represented to trial counsel that it was subsumed into the federal case and i do believe that the that the but the judge when the allow them to cross examine him on it so it didn't come in the jury didn't hear that but didn't but that's a different issue than whether you knew there was a state well they knew there was a to it's not that the state charges and the and the substan the jury to hear that he had a pending state charge hanging over his head at the time that he testified in this case he clearly didn't tell the full set of fact he didn't clearly didn't articulate what happened in this case accurately ok we know that because is it out evidence that you thought was proven to be material or is it that the government didn't disclose to anybody that it's that the government did not disclose that he had a pending state court case ok with the  hearing during the trial the tape six hundred eighty of the record the trial counsel said he didn't know about so that's not clear but here's what we do know we do know that the trial counsel knew that his wife was there during the search that took place on august thirteenth because he references her being there eight hundred fifty five or so on that basis alone they could have doubled the done after trial which is simply went to the clerk's office and asked for the record and you can see how easy it was for them to obtain the fact that she had a charge against her that sixteen twenty eight of the likes selling drugs for money because all that was offered to him was an opportunity do this and even if you accept his version of the facts that high trade helped him to find somebody to sell the drugs to all that is offering him an opportunity to rehabilitation or the facts are extraordinary most entrapment facts are jacobson's were extraordinary and you may be right these facts aren't but on the simple legal principle that a jury can't be told that they can decide predisposition because of one prior conviction jan testified at trial that mr alexander not knowing he was a drug dealer having made out of the door of business for over a decade randomly walked up to him ask him if he had  for which he had no clientele for i mean it's not believable ok in the bottom line is whatever he testified to the trial is not accurate and why do we know that mr alexander's rendition of events is more accurate it's based on the lead agents testimony that yeah yeah this is a grand jury i mean government seeming to agree with you but it looked like question was can you give the grand jury a background about mr alexander answer mr alexander approached a confidential informant that i currently utilize so it's the opposite didn't abbe say your client approached but when he asked him why did that happen ok why did that happen of course we're going to say he approached him why did that happen oh because he told him he had a source in california that could get him anything opposite happens i don't know why i don't remember the actual word approached but i remember that they had a conversation and i remember that you know when when asked why that happened it basically cooperated with mr alexander's testimony was that he had he told him his employer that he had a source in california that could get anything i mean mr allen i mean honestly from a commonsense point of view forget everything else from a common sense makes no sense that somebody has been out of the game for over a mr alexander was approached numerous times prior to getting involved and it wasn't until he said i have this thing that these it's the hottest thing on the market and then you know this and they say oh you want to talk to see if you could move the drugs clearly in august twelfth but they sound opportunistic like your client had pretty darn good interest in all this well you know what i think at some point he did and i'm not going to misstate that but i think at that point he was already entrapped i think the entrapment is what happened at the beginning ok like i said the criminal however he didn't specifically say how that went down mr alexander did and a lot the some of at least partial part of that testimony was probably by the agent in the grand jury testimony ok so with respect to that i just don't think it's believable to think that after you've been out of the game for that long you have no clientele to move the stuff and you don't even know what the hardest thing whatever you're going to go up to somebody ask for something you have no clientele for i mean it just doesn't make any sense from a logical point of view going back to the brady issue ok the deal with the brady issue again is this didn't happen like it typically happens when you're dealing with a case that simultaneously going on a stick or in federal court it wasn't until almost a year after the federal charges high tran had been going back to court to court on this he knew this was going on ok regardless of whether had prescribed it doesn't matter because the still pending nobody found still pending at the time that he testified and he did not tell the whole story when he testified to the jury and i think because this case comes down to who do you believe do you believe god sander part of his testimony is proper to believe or do you believe hired hands version of  complete the course of this morning and we will be