saddam hussein and two thousand he was granted asylum he got his dream of getting a ticket to lottery ticket only to have his dreams shattered by the failure of the court to apply the protections of the fourth amendment think you've got a problem because there was a hearing and everybody testified and you've got officer court right saying i didn't do anything to stop them and you've got that backed up my officer spikes he says he didn't do anything to stop your client and all you have is officer lopez who had his back to the whole scene and didn't hear anything until he turned around and so you've got a finding of fact by the district court based on and hearing and hearing and how do you overcome that i just i disagree i think you have to look at you have to lay out look at the layout of the land federal fifteen very remote area nine o'clock at night between nine and ten pm five cars are pulled over three law enforcement officers and two other vehicle don't see why that's to stop let me  what there is when there are bunch of police and the cars are stopped it may be that everybody's getting stopped it may be that people are pulling over because there's something up ahead and may just the point i use my brights i once did stop and that is why i'm having so much trouble there are a bunch of police and i stopped and i said i am driving home why can't i go and they said we got in we got  an incident we're dealing with i understood that they weren't stopping me to inspect me they had some guy shooting across the road but i think that's a different thing if you if you if the if the police were stopping everybody but here's what happen officer quote right indicates when he's there he wants mr l not start to slow down mr l not star moves over he puts the flashlight in front of his car to let him know i'm still here mr l nisar is going by he's right he's not ready to stop he pulls conversation they both admit to saying something as they're flashing the light in ever told them to stop well your doors were rolled up you're driving you see you small down going your window when i ask them well you still have to stop that well now you is whether you misinterpreted something as a as an indication to stop which one of the officers intended and asked him to stop and they said we had our hands full because we already had enough people stopped it wasn't our intention to stop the car and it just stop and as it went by we saw these people hiding on the floorboards the problem is that you've had the hearing it sounds to me like you're just trying to reargue a hearing in a court heard all of this and said there was no intent in there was no stop your client did stop it not because of what the officer said you have to whether they were intent to stop the car that was a reasonable response by a motorist to stop the what he says a reasonable response a motorist turns a nonstop into a stop i can't think of a case right off i've never read one and twice i don't motorist and there has to be a seizure and that's what the court was saying there wasn't a seizure your client might have thought he was being seized but the ruling was there was no seizure i believe i would disagree judge i believe that there was a seizure and he stopped in response to th road so they don't get run into by other people they shine lights but i mean when i was looking at the facts of the case and i was thinking what would i have done as a reasonable motorist i would like to think i'm a reasonably well that's why i want to stop but that's not part of the equation out of the fourth amendment what would you have done it's one where there was an situation and having more slowed down well there's the intent was to actually look into the view but this is near what you have to say the area was designed scituate a reasonable motorist have to slow down every time a police officer in the field shines a light at somebody if the person stops it's a seizure subject or constitutional review not every time but in most times when you have a police officer pulling people over they're not also looking at other cars or going by to see what they're doing they're busy doing taking care of that business right there that's not right one officer we hope that there's actually even a more interesting and novel argument going sensing issue but from my client's first that perspective pride doesn't do them any good because the private deported as a result of this conviction hopefully will have to address the sentencing issue  and that the court can reverse mr on the stars conviction so they were prevented from having to face going back to iraq and possibly a death sentence in iraq again saddam hussein is gone well he says i don't think we all we know saddam hussein is not in power but i think with the events that are going to iraq right now we still know that some of his cohorts are still running the show we wouldn't have this kind of problem if saddam assigned and had his hands and what was going on in iraq at this point would have doctors say why he stopped with his testimony as to why he stopped you say you don't know i don't know it's unclear as to why he actually stopped you want to say that it wasn't was there a reason in the record as to why he stopped i believe was made in the arguments but i'm not sure if he actually testif he never said i was stopped or because the officer stopped me with a flashlight i don't believe he actually articulated as sex clearcut wait there was a use of an arabic interpreter that is a weakness in our case i have a hard time not quite understanding if i was fine was the lawyer appeared in this case like you are the first thing i would look for and what what the what the defendant the or say at the trial as to why you stopped and i did look for that judge but this way you know if you if there's no evidence as to why he stopped then of course you're going to lose i would say there was no evidence i believe you can make an inference that he stopped in why did you stop him prince i would cross the floor did not say why did you stop and give al nasser chance to answer it because he already knew the answer and it would be harmful of the case i mean when i did ask a witness  actions the officer chasing the car after pulled over most if the officer really did intend not to stop and go on would await the months that move on get out the highway know what do they do is that they go over there to take the keys away stop and they show their inten s several of the issues raised in the questioning of defense counsel first of all as the law enforcement agents were in the scene and as the vehicle approached them the district judge did not clearly air in his determinations that they did not make any physical force or show of authority the shining of the light is really no different then the police officers in the bostic case one of whom had the zipper pouch the equivalent of a holster gun walking on a narrow bus asking questions in the supreme court in boston held that that was not a show of force or authority that would subject the questioning of the passengers on the bus and make that into a stop i'm curious about something as i understand our master never said they told me to stop or i stopped because i thought they were telling me to stop and no policeman said anything to that effect except lopez said he heard somebody yelling stop  i don't recall the district judge saying anything about lopez in particular though she found that there was no stop your record is correct that all anything more about that i'm nasser did not ever say that he was on the roadway as he was driving up to the site where he eventually picked up the you have the burden of proof in this case as to whether or not there was a stop the prosecution or the defense the government has the burden of proof to show that this was a lawful encounter with they have the burns of their own as there was no stock but there in this case down to the criminal case does not prove anything well that's correct you're right that is correct all right so therefore the government asked to prove beyond a the it's the equivalent of a suppression hearing for evidence or or other fourth amendment search and seizure in the u s the equivalent of a suppression issue for other fourth amendment search and seizure issues the burden on the government at that stage is a burden but as a preponderance of the evidence burden and the government believes that it was met in this case you have a case that says that in the criminal case the government has the lawyer the burden of performance of the evidence to prove the fact that you know you're on you can't find a case here  address the alternative argument of whether or not there was reasonable suspicion if i can go back to judge kleinfeld question with respect to officer lopez that was not addressed in the district judge's opinion as to any effect if at all on that officer lopez facing away had on the determination but that doesn't change the fact that there was no alternative story told by a percipient witness officer lopez was facing the other direction he is hearing of a car stopping was really the equivalent of in thomas an officer hearing the thump of marijuana bails in determining that that was reasonable suspicion that's not a fact with which there was enough evidence to base it on i would add in addition the material witness testimony not presented to the district judge at the pretrial hearing but presented at trial doesn't change the analysis either what was what was that what the district going through a in regard to the statement wrong who else was around it was his belief that he heard that rather than a definitive statement and he said testified to that admitted that he was not able to see it and the district judge in weighing the facts that was not a fact that was specifically listed in the written opinion but again that was not a percipient witness who was in a position to tell the actions that were taking place on that roadway that's similar to again the material witnesses who did not make anything other than conclusory statements they were asked questions in their depositions about timing and specifically about whether or not how long they'd been in the vehicle they said they'd been in for forty five to fifty minutes until immigration stopped them but that's conclusory and the defendant had the opportunity to ask further questions and did not do that in the video depositions and in addition those witnesses were either on the floor in a position similar to hiding and therefore unable to see what was happening or they were in a position of looking rigidly ahead and not paying attention so that takes us then to this vehicle stopping on its own is the district judge found and another issue raised by the defense is why did the officers run or where there was a done that was involved in being found as opposed to simply people who were able to be determined early on that there was no that they were here unlawfully i'd like finally to address the issue of the reasonableness of this sentence reasonable sentence of fifteen months the government believes that the district judge considered all of the facts under eighteen u s c thirty five fifty three  gave an upward departure based on the under representation of the criminal history but chose not to do so based on the misdemeanor domestic violence cases the district judge did not credit the defendant's testimony that it was an unwise yet generous knowing whether or not people on the side of the road run documented was untrue and if the judge felt that it was knowingly part of an organized activity involving financial gain based on all these facts the government contends that have made a determination because that what the jury determined is distinct from what the judges rule was under the guidelines and that's because the jury was asked the question did this defendant have a profit motive their answer was no but that's a separate question a distinct purpose the court still had to determine under the guidelines whether or not the offense as a whole involved profit and acquitted conduct can still provide an enhanced meant for a sentence based on that the defendant  that his plea is burden to show in any way that this was a not for profit offense and as a result based on the lawful interaction initially with mr thomas or based on the other evidence and circumstances in the case and based on his personal circumstances under eighteen u s c thirty five fifty three a the government contends that the sentence as well was reasonable and should be upheld by this court thank you very careful you went over your time but take testify at the depositions and during the interview by age in court right that they were stopped after your stop what did you do we did this what we were after we were stopped we gave statements after we were stopped we identified the driver so it goes again really probably is not as relevant as the reasonable reaction of the motorist to the law enforcement action to give the hypothetical two cars are speeding the officer sees two cars he decides he's going to pull over the first one because it's fact going lot higher rate of speed turns on his light reasonableness of the response of the defendant and the driver is determining factor as to whether there was an unreasonable stop thank you counsel may make one comment judge despite judge wakes