reserve this time five minutes rebuttal since i don't know what issue is most important to the course consideration here i guess i'm just going to forge forward leaving some time for mr putin address the other issue of the court once you get to that soon before the district court it was fully briefed by the government and by trial counsel and the judge judge malloy essentially turned the entire issue around to a question of whether or not really is the arrest the officers who are on the scene officer do you know cook was the primary person who made the initial detention held mr jenson for a period of time on this piece of property off there's no dui there's no reckless driving we are not going to make an arrest it's a dad point in time that officer cook really begins the series making a series of decisions which are or  testified he was supposed to bring mr jenson immediately to this meet near the twenty kalispell waifish instead he takes mr jenson entirely the opposite direction fifteen miles out of the way not towards cows for fifteen miles the other direction any holes in their incommunicado with the express purpose in and chance of getting the drug dogs there so they could get the drug dog  be arrested for reckless driving since the flatted county officers at your station nevertheless there was probable cause to believe that mr jensen at that moment had drugs in the car and was committing an offense that was the anything on him and asked for me and says i didn't know he was back from mexico that is the so i'm told all of the testimony in the record indicating what transpired between those two officers can i  would go out the window is there any evidence that karma communicates with either of the other gentleman during this on the ground situation serial evidence or there is no evidence from a carful even involved in this new any way whatsoever mccarville doesn't show up until that happened except it had to happen sometime prior to the the affidavit for the search for mcardle is nowhere at the scene there's no indication that for instance there was if you look at the collective collective  knowledge cases specifically bernard enough to kill a case there was a reefing of the taken place of earlier in the day saying we have this information about this individual no evidence in this particular case of any such thing occurred when done some illicit drug activity in a black station wagon was then known at that moment if meat hand knew that it wasn't made a part of the record no your honor in fact i information that had been uncorroborated prior to making the arrest obviously this is prior to making the arrest even if some information none of that information been corroborated by me and then there's nothing within the record to show that the information hel was ever provided to me hand prior to the rest either which through multiple independent informants might provide a problem possible crowd ration there's no evidence to make that connection but i have the states that since the sentencing guidelines commission was under the auspices of the judiciary that there was no separation of powers problem however the opinion goes on just stated that if the commission the underneath fifty one fifty one the information and the mandatory maximum sentence of life in prison was given to mr jensen in spite of the sentencing guidelines which would have mandated approximately a twenty year sentence and the district judge malloy specifically found that it should be under the guidelines rather than under eight  according to the facts and circumstances surrounding this are janssen as well as the fast of the caps and so therefore i don't believe that booker flies at all in this particular situation but what it does highlight is the goal of sentencing is to have some sort of consistency here the total arbitrary power is with the attorney general and at this and seeing hearing as we've set forth in our brief the reason they did so is because they could that was the only explanation that the u s attorney general ran because we can't and we don't believe that that is constitutional and you certainly don't believe that it's just well you're down to about four minutes  knew and when he knew it it's important i think in this case to recognize that sergeant cook had been working on this northwest drug task force up until about a month prior to the stop and rest of jacinth event on that task force i believe for a couple of years i and had certainly been present when detective mcardle was working there one of the things that comes up and i think that that the district court relied on in establishing the depth of sergeant cuff knowledge about jackson's activities may be found at the excerpts of record page forty one and forty two and that's a police report from what we have is we have a pretty substantial recitation from cook about just what he knew about chance and his activities and in particular what what i think is clear from reading  bottom paragraph of page forty one through the first paragraph of page forty two is that the cook was aware of that death just fanuc was making these trips to california to get one area that is bringing back  stop as lead counsel concedes that there's there's a reasonable suspicion for the stop or from the moment of the stop on bring this out for us because i'm not quite sure i understand when cook's imputed knowledge becomes triggered so to speak is it at the very first time of the stop because of his prior taskforce experience or is it because of these conversations that have north and once he gets a suspicion that it's johnson and i think his testimony is pretty clear on this point he's interested in janssen not only for the for the reckless driving but he's also interested in the for drugs and i think that the his report which is recounted at at the excerpts of the record makes that clear that he's got this knowledge that he does do something some additional stuff he's he calls me and in particular and speaks to me and addresses whether or not me what i do think forty one and forty do to do is i think that they establish a close relationship between these agents i think it certainly shows that that a coach has some knowledge of his own that he brought with them from the task force he is working with me and that day he speaks with them there's a close working relationship here and i think that bernard is it's pretty clear that that one officer doesn't have to necessarily know what all the other officers know where they're working together closely over the total time elapsed from the moment the stop until the moment of the impoundment of the vehicle it's a fairly brief period of  time judge i think it would be safe to say that between that the time of the stop and the actual impoundment is probably less than an hour less than one hour less than one hour because my recollection judge is that i is most and you would say that simply being on the taskforce was enough i think so i think given the particular circumstances of this case we you know we need to recognize that we're speaking about a if it's not a crime to come back from mexico what was the actual knowledge that cook possessed that would be sufficient to that they had purchased drugs from the defendant before that he had this routine of going to california or met the southern california area they would purchase large quantities of methamphetamine informants that had a discussion i can't remember who was mccarville and meet him in january about me january there he was on one of these trips so that would put him in return involved in this timeframe of february nineteenth than having them just sort of come into their laps the way they did and i guess i don't have a good answer for you on that on that judge the other thing we've argued in our brief so i won't rehash it recognized judgment like did not fine for the government on this issue but the government does suggest that the officer had the authority to make an arrest for reckless driving i realized state versus androcles son is out there i think it's a little different in this case and and i think that that search warrants even if it were excised of the the very limited material which concerns that dog sniff of the car establish probable cause and i think that that is something that needs to be of the other discretion afforded to prosecutors prosecutors are given wide latitude in determining which charges to bring for example i know frequently i work in cases of some of the reservations for native americans in montana were frequently faced with circumstances where we choose between first degree murder charges which carry mandatory life and second which is not how it is simply something that's really traditionally trusted to the discretion of the of the issue the government's argument seems to be that cooke had imputed knowledge of what mccarville knew because certainly he'd been present when the car was at the the northwest information regarding his work there is contained in fact in the the one f cation is there any evidence of how they get once and how often he may and in what kind of communication there was absolutely none absolutely not and i think that was one of the important issues and bernard if you take a look at barnard you have you have the first pass through has a whole bunch of information frederick's gets first officers frederick's he obtains a whole bunch of information regarding forms to have corroborating surveillance which we i think perhaps again the court really needs to consider that neither of these experienced asked although they're from a small town nevertheless they are experienced officers neither of them for a moment considered that they had sufficient probable cause to make a narcotic service ever i think that is probably the most cogent piece of  under eight forty one eight fifty one information a rose after the charging and he was convicted of eight forty one this is a discretionary document filed by the united states attorney general pursuant to attorney general ashcroft's direction no reason other than to exercise the power that congress gave him there was nothing other then attorney general ashcroft's memo to the united states attorney's office that made mandatory to the judge which makes the judge nothing more it's sentencing other than a clerk that's the issue and you can also act case just argued will be submitted for decision and the court