the death conduct at trial the jury made a finding that mr gast barfly piece conduct and not result in the death sentence when he received a ten level upward adjustment based on the death and guideline into l one point one is increased represents an increase from twenty seven months to seventy eight months which is a difference of fifty one months as opposed to what it would have been a twenty seven months without being attributed for the death which is what he would have received i think three things make this case unique st the jury finding acquitting him of the conduct resulting in the d complete removal in a couple of different senses from the scene of the shooting in the death st physically he was over fifty miles away and over an hour by driving time the shooting scene he was in a completely different vehicle input on that aspect of the case whatsoever rd in the manner of the death itself by an intentional shooting by want horsemen which fired over forty times and if you call that already been disabled by a controlled tire deflation device was already slowing down and pulling off to the side of the road at the time that law enforcement in contravention of its own internal policy fired the vehicle and in the line of sight of an inhabited residence i believe that these things need to be established in order to have a discussion about relevant conduct in terms of mr gasper philippe and in terms of his co defendants st what's of course describes when we should consider seventeen and there are hundreds of alien smuggling cases in the western just to texas that's a lot of the cases that happened up there less than one percent of the cases resulted in a death the types of deaths in the types of harm that typically take place from the case law i was able to to find involved us from exposure from dehydration or from being packed too tightly or it in unsafe conditions in a vehicle none of those things occurred in this case the  causation standard and our argument would be that about four causation standard is the holding of the court we think that the that the specific facts in this case are so far it's a new way to pass any anything that's been considered under about four are involved in actually driving in proximity they're much closer to what happens in our distance case he is ringback so far removed from the decision making that occurred in the type of harm that occurred here an intentional shooting by law honor may i finish my point i have i just wanted to say if it even if there was contact information on his phone he didn't say a word or commander instructs anybody once he was in the vehicle so his is a contact stopped and deposition and transcripts a trial of the two material witnesses is needed no dispute that those statements service testimony of statements the only issue is whether the two aliens were unavailable for the purposes of the part of those efforts deals with in the coming in the context of alien witnesses whether the government made efforts of keeping the witnesses in the united states even though it's not required to now in the cas vs al which is cited in both briefs the court there did find good faith efforts were exhausted partly because the government gave the option to the witnesses of remaining in the united but gave them the option of doing they could return to mexico they could stay in the u s but that's a key distinction from this case here where the aliens were given that option they were just told you're going to be deported back to your home country of what amala and here and some instructions if your presence is required at trial do we know for a fact that they reached what we do not your honor we do not and in that goes to the next point if the witnesses are deported as they do in many cases the government has to take steps to make sure that those witnesses return for trial is successful so for instance in u s versus foster the court established that determine whether they contact information has been verified is an important step in that court the court stated and i quote verifying the contact information for provided by a material witness in an alien smuggling case before deporting the witness to his home country is a crucial step that if not taken undertaken will most certainly handicap the government's efforts to maintain contact well in this case oh the testimony showed that the witnesses provided the government a phone number they provided an address up however no actions were taken by the couple government to verify the the authenticity or workability of that phone number of course the government argues that they made nine phone call attempts on nine different occasions to each witness and the efforts became futile all that's going to happen if you never verified that contact number to begin with nor the address  the aliens provided an address but there is nothing in the record to show that the government even attempted to mail correspondence to those at least the mailing in foster i believe in us versus  individual who answered the phone d said that eases father however nothing fruitful came up that content that the person on the other line did say he was the father but nothing was done to establish communication if there's no evidence that says that he told them i'm going to have my son contact to you shortly or i'm going to have i'm going to get you in contact with him in some other form that wasn't done i also notice that in u s versus foster they were there were several attempts they they made for six attempts at contacting the witnesses by phone but they're also and i missed this year on earlier when you asked me the question of contact there were also four attempts to communicate with the witnesses by e mail so if you put those together that's a total of ten contacts up tempted by the government in that case i'm not trying to say there's a bright line rule i don't think the courts have established if you call witnesses this many times you've met that good faith that for it that just goes to show that despite the nine attempts in this case i don't think that's sufficient to show those efforts in addition if i may bring another issue into play it's the veracity and the unsworn representations made by the government at no testimony in this case the government filed a motion and attached to the motion i believe they put up a short memo from a case agent there were no sworn affidavits put into evidence showing the calls were made there was no witness testimony and again on discussing the pretrial motion where this issue came up there were no exhibits admitted into evidence there was d one memo put in the back of the government's motion at the pretrial hearing and the memo was from the agent telling the court through this memo that he had these nine contacts with each witness and then if you read further on in that memo attached he talks about how he was going to do flight arrangements if necessary for the witnesses the problem there your honor goes back to the subpoena and the letter that was given to the zillion witnesses at the time of their deposition they were given a subpoena and english only which  dealing with spanish speaking witnesses but they were also given a letter the letter was in spanish however if the court looks at the letter and it's it's part of the record the letter was given instructions on how to get to that was testimony at trial yes your honor at the trial maybe i should make that distinction at the trial there was testimony but the court had already made its decision in a pretrial hearing the st volume  motion hearing and the record establishes that in volume if i could just finish my final thought on this case again it's not certainly one factor that shows good faith i believe the courts have established just an aggregation of factors i believe based on all of the factors in this case including the acts before deportation but especially those that are lacking after show that faith effort and reasonable measures were not taken in this case i thank you is let me start with the confrontation issue and i i would suggest to the court that the foster case which also came out of our district it was sort of  stay in the united states that wasn't done and it wasn't agency practice i mean whether or not that's an excuse i don't know but that was advise d the witness the testimony would be needed at trial they were they were advised during the material witness  secure the witnesses agreement to return for trial both material witnesses said that they would they understood they said that they would issue and serve with a subpoena and that was attached to the government's motion in each was served with a subpoena they were in english but they each received a subpoena take care of lodging one of the things the court is looked at is the advancement of travel plans and they were not advanced because this occurred probably eight months or more but but but eight months before the trial explain instructions for returning to the united states that was done generally with more to follow when they were contacted if they were needed they exchanged contact information witnesses were given the agents contact information they were told when you get to the knows suggested that the government ought to verify the contact information before deportation i think that's what he said can you comment on whether that's feasible whether the government does  back later and the nd time he called the spoke to the man who identified himself as a father and spoke to him several times in subsequent calls got a follow up telephone number and a number of those calls where he tried to reach at the contact  he also tried at the nd number so there were efforts made to reach out that there was no e mail to do and they were not letters done but in contrast there are several major contrasts to foster and one of those is in foster we waited too long to try to reach out to humans and i think that's part of what bothered pan we waited three and half months before we even made efforts in this instance we made we started our efforts and made contact at least with people connected to at least one of the aliens six weeks after the depositions and that was the good seven months prior to the trial and those attacks went on for a period of five or we didn't do that in that case i don't know why it's not in the record i don't know if it would have made a difference we did not make an effort to contact the foreign government i don't know the reasons for that with mexico it's a little bit easier because we have those connections when we get into central america there are some some trot circumstances there that may make it something we don't want to do if it's somebody who's trying to flee the country for some reason we may not want to give word to that as a government kind of contact he had and so there was there was copies of the subpoenas there were copies of the letters both in spanish and english that were part of the record there was deposition testimony there's an agent memo and then there is agent trial test kloster though is saying there were these problems perhaps with the evidence that we're going to zoom it's all admissible and it's still not enough and the timing was different that favors you versus foster but they did try different means and foster like male and female so how does how does that wash out against the divine but i think that the issue before the court is did we make reasonable efforts to get them back that we check every single one of these but if you look at it on the continuum did we maintain contacted were we diligent about trying to make contact sufficiently early on so we didn't lose track of them or lose sight of them and i'm not entirely sure that those additional steps would have made a difference beyond what we had already done in the telephonic contact and securing their agreements to come back and so forth and giving them documentation i and i think the jointly undertaken activity in this case and the evidence shows that he served as a guide for nine days in the desert between now and then he was travelling with the group of aliens they were in two vehicles one got stopped and that's the one that he was in but he fled and he and the aliens inferentially from the evidence were on their way to hobbs new mexico where these three jitter for kids were from who were doing the transporting and he was going hogs to mexico i think for for two reasons one is was to make sure that the subsequent payments that the aliens had to make for their transport were made because d according to the documentary evidence and the testimony as i read it there are text messages that go back and forth and talk about and that relate to animals and western union money brains and those occur the day before the aliens are released from hogs from hobbes or seminal whichever one it is or thirty miles apart or something but the aliens are being held until the payments were confirmed and then they were released and then the day after that carlos gomez is arrested and very shortly after that you  arrangement then was to return or be returned to a cannot get down on the border and our inference is he was going back he's going to do this again he was caught down in brewster  and about february twenty eight team so he had been in before and the inference was this is what his job was he was the guy to cross the desert then he would see them to me the murder question is on the stand hanssen is foreseeability what's your best case that we basically have here the death happens when ninety miles from where the defendant is after the other cars run over two sets of spikes i think avoided a rd drives into oncoming traffic and it was schools that causes law enforcement to shoot at the car you what's in the range of similar conduct that's been held to be foreseeable in this area well i think the language in recent nondefense is is is probably the strongest language there d is because it talks about it's not the the the the foreseeability turns on whether harm of a general sort to per person is of a general class might have been reasonably anticipated by a reasonably thoughtful person but it's not that the manner of death is necessarily foreseeable so that there d that there would be a high risk of serious injury or death during this part of the finished his job now and in alpine when they all got in the cars and i have a little bit of problem conception with with a distance distinction of the distance factor because what if he had been in the car he could have just as easily h relevant conduct if he's in the car well i think in ruiz when in i don't know that i have to i mean i think it already was relevant kind of it was just a circumstance that the pickup truck struck the spikes ramp and it was stopped and then you know it was fifty miles away but the career that fifty mark and probably about half an hour if they were traveling one hundred miles an hour and there's nothing on those roads you know that's a straight shot basically from alpine up to modern and so i and i submit to the court that it's that sort of a red herring i know that's the circumstance but i don't think that makes any other there's only foreseeability if you're in a as you say jointly undertaken inquiry if you're just the one driving that car oh you just did it was old and death there's no foreseeability requirement at all of the manner of the death mean that that it's that it's going to be cause and it's a but for causation because of the reckless sure there are some limits on this at some point you know they're driving down the road and i mean you're right comes down cannot argue a case i don't know how that would come out but this one i don't have a problem with because they were trying to avoid death on foreseeability right the manner of death or that look the way that the injury happens our position in this case is that although dying from a car accident or a possible high speed chase those are not facts that are in this case we have a high speed chase we don't have a crash as a result of that we don't have anything like that we have police officers who fired their weapons against their own policy causing the death in this case when the vehicle was already disabled and vehicle was actually so it is so the vehicle had its tire ripped out which is what testimony showed and it was driving from the wrong lane of traffic back into another the other way when a traffic off the left side of the road before the shooting took place it was just fine down to ten miles per hour or less from what the testimony showed at the time that the officers fired their weapons it was fully off the road not facing any on coming vehicles and was starting to go into a fence whenever the fit the shooting actually began taking place and that matters because it goes into mr caspar felipe his contribution and i remember he doesn't speak any english and a nd vehicle he had no idea that shooting had even taken place for a long time after it actually occurred i think that there is a real there's a deep level of unfairness that should be considered in this case only phillippi never contravened his guilt in the alien smuggling he never did he tried many many times to plead guilty to that he just leave it on appeal that he's saying he wasn't involved in transporting and he wasn't in it for facial ga and that was part of the deposition just really rather more the government also did not try to get in touch with material witnesses attorneys i actually was able to talk to one of material witnesses before the trial because i did so so they were those efforts would have borne fruit if they had done things like contact the government of quantum all of the consulate tried to issue checks to them before hi i think i can ask you how did you reach them i