trial we went through it at some way a number of statements in our brief which we don't believe were inculpatory and where i think as required by saying that the district court did not do a gran our appendix and they simply don't they don't go through statement by statement as to why each one when i'm trying to understand is whether the it was presented to the judge in that way and i saw her response and does in a very granular way but i wasn't it wasn't clear to me that the trial counsel presented the objections to the statements in such a granular way to give the district court an opportunity to rule on them  if nature of each statement wasn't presented in a way that invited the judge to make a finding as to each statement individually yes i think as to the statements individually the government laid it out which you know given that the law at the time was very well settled then one has to make the sort of granular findings that we talk about in the brief i should have done that and did not do so and you know we also take issue i think with some of the specific findings she did make including a finding that people involved in but i will say that on the whole they required the individuals findings which we did not receive in this case and if we agree with you that it would been better practice for the district court to go through more granularly even absent such a presentation of objections by counsel it could be find it was harmless error nonetheless to have made that ruling i argue that it's not simply because your honor we lengthy and significant criminal records fernandez was testifying under grant of immunity and as always when is testifying under man of immunity is testimony has to be looked at with special care and so this testimony that came in under in four b three did it quite a bit in my view to the government's case and i think in that in the context here it would not be appropriate to find it was harmless we also argued that in any event even for those statements where the court would find that they were in fact inculpatory that they were not reliable and that the reliability  of the witness mr fernandez he was immunized and he had substantial motive to fabricate you also was very concerned about his potential liability at that point the other range was life and the two counts were each twenty year counts and so sentenced consecutively of forty years was the maximum that the defendant could receive now although it was a guideline sentence to court this court has held that the fact that it was a guideline sentence doesn't preclude analysis for substantive disparity and just briefly there's no premeditation and this is on page four  seven of our appendix the district court's findings all of error was not engaged she did not engage in the violence and she in terms of no premeditation i think the district court said she believed they didn't go there intending to kill but that wasn't excluded from the range of possibilities or violence wasn't excluded from the range of possibilities by any agreement now was it does the record you're correct your honor we are to be excluded from the range of possibilities but they're keeping him people usually don't pay social calls with the hammer will we'll hear more thank you very much you have a minute every bottle out will hear from miss feldman the government here argues with respect to the cooperating witness fernandez that fernandez his role as a long time a prior drug supplier in the years before twelve really was something that was unnecessarily presented and its prejudicial impact on this case certainly outweighed its probative value there is no question that the government could have presented that's a government going to present to the two parties had a longstanding relationship they knew each other in college but the fact that they had to wanted to present that there was a drug dealing relationship was robbery at a later time all of which was put together by the government to try to lure lopez into making certain statements to fernandez that's not me that's not government misconduct it happens pretty often it does it does i understand that you're mr fernandez is testimony also about the drug debt owed to him by because of their prior dealings provide a possible motive for the robbery no your honor because the i don't know that that was really the motive based on the record that was presented that there was no in the don't know but when he i thought when he repaid the money he explained it was from the robbery and he did have a debt having received a supply and not having paid for it i thought in my mind correct indicate that the record does not state that he told fernandez he was paying him back from the klein robbery but he said there was a lick it was a prior like plus the math doesn't add  up he was he owed him three hundred and fifty dollars and according to the record faceplate eighty eight dollars well just because they found less than they expected possibly doesn't mean that they weren't related but that the issue is that the government was trying to imply that the three hundred and fifty dollars that was paid came from the klein robbery there's no there's no real evidence as to that it's simply an inference based on an inf but not in necessarily indicating it was the klein robbery he doesn't indicate it was a link three months ago there's no timeline there's no where the link occurred or anything it was just in there conversation  probative margin lopez live together that was the nature of their relationship there was absolutely no evidence that they jointly sold drugs in fact they didn't to at least help drugs they were in  believe much was a member of the latin kings and and he was living there but there was absolutely no prior criminal relationship between monash and lopez the obviously we have the the relationship that occurred during the the the alleged crime as counsel pointed out both fernandez and minds are compromised witnesses fernandez testified under an immunity agreement and monch testified pursuant to a cooperation agreement so these are not reliable witnesses and the the information regarding fernandez's drunk prior drug  selling criminal activity was really not offered for a proper purpose it was not relevant to material to the issues that were in dispute in this case and as i indicated the probative value substantially outweighed the fernandez in any kind of context and there was the evidence of the sting robbery i think was interesting primarily because it was concocted  concocted crime and i understand that the courts a position on that but they eat the judge's determination that somehow there was showed some kind of modus operandi was also in my in our view questionable modus operandi is when you share some characteristic there was no sharing of a characteristic between the prior drug dealing or the sting robbery and what occurred in the crime hobbs robbery so certainly i don't believe that there was a modus operandi that was operating here to show that that evidence should have been admitted i will i have said for some time for me as for the questions thank you very much thank you i will hear from the government admitted statements against people interest against both of the two if it could you could you dress the statement against penal interest please looking back at williamson and looking at our february twenty one thousand decision and i don't know how to pronounce it as you don we seem to be looking for a level of specificity in granular review that carefully calibrates whether the state was actually asked against penal interest and whether it was corroborated whether was reliable and we do so in a statement by statement way and that's what williamson seems to emphasize particularity i gather here that the defense counsel didn't exactly ask for that but it wasn't  incumbent on the district court to conduct a more detailed analysis because these were you can read the testimony with the challenge statements whited out and it still makes sense it's not that they were necessary to the flow of the narrative otherwise the jury would be puzzled as a kid could you address that concern of course and a couple of points st i think looking at the way this was presented to the court in fact the government moved in limon and laid out these sentences one by one in discrete portions of that they were available for the district court to review and actually at the final pretrial conference when this issue was litigated and there was some briefing obviously in response to the government did actually go through the statements the portion of the transcript where that happens is relatively short but there is a statement by statement discussion with the government about how the what the government's position is would you should point me to where in the record that is please yes your honor and be happy to do that let me just a statements against people interests there were some statements made to an inmate who wound up not testifying at the trial so that kind of dropped away and then there were also these statements made to mr fernandez that were laid out on a statement by statement basis and you know could the judge have gone into more detail on each statement sure but there is evidence here that the judge is parsing them out looking at them one at a time they've been presented to judge fail in that manner and at the end obviously rather than ruling on each statement individually the judge does decide to rule on them as a group but i don't think there's any legal issue with that the fact is she had considered them all and she knows what the law is regarding the fact that they must be against against his pino interest because that is a critical detail of how they charged robbery was to take place and in fact exactly how it did take place so the law is very clear with regard to inculpatory statements that the statement doesn't need to subject you to immediate prosecution or on its own make you guilty as long as it would be prohibited in a trial against you on that front criminal offense and there's no doubt that saying that your coconspirator was going to gain access to the victim apartment in a robbery is very probative evidence in the trial and to the extent that some of these statements are less directly related to the offense they still very clearly laid out the relationship between the parties the relationship between this oliver and the victim of the crime the relationship between mr lopez and his coconspirator and it's all over all of which were also in light of all the circumstances of this case very probative evidence against mr lopez and therefore clearly inculpatory under the rule and to add to that i mean i don't think it's worth dwelling on the reliability issue to too long but these were not same it's made to law enforcement these are statements made to an ally you know not in the context of a post arrest and and they were very well corroborated by the other evidence in the case which which leads me to the last point which is harmlessness it's just simply not the case that this was such critical evidence that had it fallen away and this would have been convicted anyway there were there was the surveillance video there was the other witness who testified about her involvement a coconspirator in the crime there were call records showing the miss oliver was one of the very last people in touch with the victim there was her own statements to law enforcement that she made where she changed her story about whether she went there and they were recorded prison calls with mr lopez in which they talked about the victim so there was overwhelming evidence aside from these statements and so even if the judge did abuse her discretion here it was harmless error a different issue the judge jacobs mentioned so what is the record evidence that miss lopez knew that wrench mallet or other tools a the two weapons but this was all happening in her apartment the testimony was clear that she was there while it was happening that they not only did they gather these weapons up at the apartment that they all travel together to the victim's apartment  and so it was a very reasonable inference to be drawn by the judge based on that testimony but to add to that when the when the robbery was actually taking place and these two men came into the apartment it's not as if miss all of arab was gone she was right there and walked by them as they were beating mr klein to death with those very weapons and she did not intercede she did not attempt to stop the beating she in fact she continued her participation in the robbery by grabbing a safe putting it in a bag walking out right by this brutal brutal beating that led to mr klein remarkable person to walk up to people who  beating someone to death and saying i don't really approve of this you should stop question i mean this forty year sentence question is what reasonable basis that was for assuming that she knew that they were going to use the violence i mean if this plan was to tie him up so it's not as if they had some nonviolent plan to begin with and they go with these weapons the real critical thing here is she is not some passive participant she is the she is the mastermind of this robbery without her it would never have happened she knew the victim she set it up she let them in she i believe the evidence supports knew that they would use these weapons of knew in the safe was and she took the money and she walked right by these two people and i do think that here she has a personal relationship with the victim and a very close personal relationship with the two other coconspirators i don't think it would have been possible for her to say something on her way by to say that's enough i mean this is a necessary let's go that that is not outside of the realm of possibility but more to the point after they leave she says she expresses no remorse she said he deserved it and she she repeatedly next efforts to avoid prosecution by lying to law enforcement by fleeing innovating prosecution for weeks when they finally start looking for her on this crime so there was plenty of record evidence on which the judge based tourney terminations that a guideline sentence of forty years in light of her substantial role and the seriousness of this crime to grave seriousness of the crime was merited in this case in the end whatever you say about the evidence it was based on two very compromised witnesses for which one always has to be very careful and beyond those if those two witnesses aren't believed or mr m premeditation if she didn't know those weapons were in there that is a and the evidence is clear to me that she did and that is a clearly wrong is finding she doesn't deserve the forty years that the guy who hammered mr klein does and and when you compare it to the seventy two month sentence that the corporator got it's very stark from one who has no prior criminal history thank you thank you very much all right thank you very much thank you both will take the matter under advisement