thank you your honor john dallas on behalf of the gordon miller i'm intending to reserve two minutes for rebuttal and focus on my arguments going to his conviction around the bend sentencing starting with my hurst m record and have you tell me why you don't think that's enough to run his efficiency the evidence we have at least several transactions between the agent and mosher we're philips is plainly involved my discussion now mr phillips counsel might dispute that but phillips is involved in the aid and the the agent says i'd like more i need more drugs or i needed another transaction and the evidence seems to show on each of those occasions mr philips travel someplace between mr miller returns with the drugs and those occasions sometimes one at least one occasion mr miller follows mr phillips back to the location where the transaction takes place and then when arrests are finally made of mosier and phillips mr miller our so i think i'm now viewing that evidence if i do that evidence in the light most favorable to the government it's not great but is it enough to get over there the oh no it's not your respect to the time let me just ask you a factual question on that i think i remember in the record that there is evidence that he had learned about the arrest of mr philips before he  this case i thought there was some triggering event was learning about the arrests of but mr phillips maybe i'm just mosher am i wrong well i know that if it's supplemental with that he knows that phillips has some friendship with phyllis mosher not necessarily that it was or he drug transactions ok that i can go back i don't want to you know we go back to look at the record please like to reserve two minutes for rebuttal i'll try to help thank you this case is about the fundamental rights reserved defense during a criminal trial for mr phillips there was one potential defense at trial and troutman under the own usual facts presented the proffered to rd party entrapment defense was not precluded by the th circuit law and it was still under that recognized by other circuit courts including the st circuit and united states versus louisiana however under the district from pursuit of the fence a trial without it the result of the trial was ordained that it is not unusual for this court to be faced with appeals involving entrapment where the criminal defendant claims that the evidence was sufficient to denied before trial as a matter of law that legal decision by the district court which is subject to the noble review by late mr phillips is constitutional rights and violence and warrants reversal that it is important to emphasize that this case does not glance appear to preclude a rd party entrapment theory but these were court decisions not statutory provisions the paddles the psych cases based upon the facts before them and the facts are different and this court has not had the opportunity to on the record in this case all i see is the government agent buying drugs from ms mosier and encouraging her to get her get more from her supplier there's no evidence at the that suggests that number one or indicate that this agent was aware of mr bill's going all the way back to two thousand and one this is that this thing operation was that it got mr bush here where was your any evidence he was aware that mr phillips mob and it was a targeted operation at the easy and here there was evidence to support that this was a targeted operation mr phillips i would agree that you know the record is not complete on this point and it doesn't match up with all of the factors that forth in the loo easy case yet but that's that's because this defense was denied before trial this appeal is never got the opportunity to present his defense at trial he should have received the opportunity to cross point here for example in fixed in this court talked about well we don't want to allow rd party entrapment defenses because it would be very hard to prove for the government because a lot of these interactions will be happening between the private individuals not with an agency and  address is that very concerned that at age fifty six and talks about the fact that in the louise each type case the government is involved at each step of the way ok so this is a driven by the government and so i pasted the six of the the st circuit says you know that it's not it's a new way to government involvement and it distinguishes prior cases you know on that basis so i would urge the court i mean i think there is others you know scenarios where the government limits to the government's ability to use agents witting or unwitting to entrap a defendant and all we're saying all mr phillips thing is at least give us the chance give us the chance to present the evidence and if at the end of the day if at the close of evidence that evidence is not there to justify the travel and the instruction or it's not doesn't satisfy the facts or set forth in louisiana then ok don't allow it by these give us the day court given the chance to present where our defense counsel for mr phillips ended up going to respond to judge her its question as well as the argument that specific targeting is somehow improper and phillips relies heavily on what we see both in his brief  paid government informant to he was working at the direction of the f b i to target the defendant lisi and three the cocaine dealer issue that was charged and went to trial happened because credit was requesting the the defendant september th you said those were accounts eight in i think of those recounts six and seven on which mr miller was acquitted am i right i don't i don't think so but not having it in from your honor this is a fairly massive record but the evidence on september th whether it was the basis of a conviction or not it laid the path for the february th it's understand that we can consider it even if it was acquitted because it showed contact for example over the phone by between the two of them so we know they knew each other well in physical surveillance by phillips going to miller's property it's two things on september th that's it isn't just the phone activity and the spike in activity in the phones it's also the right since he was acquitted since he was a kid assume for a moment that i'm right there on those counts we certainly can infer from that activity that he was involved in a drug conspiracy in those days can we you can you can use that to apply the standard jackson in the light most favorable that the jury's verdict on the other counts was supported by the evidence and every rational inference should be drawn so maybe the jury got it right if you're correct and i'm wrong that he was acquitted of those it doesn't follow that he's not physical surveillance of the very damaging facts i'm very wary or we also have to look at young guarded admissions to mosher she's providing details to the undercover and a time when she can't possibly know she's being recorded when you put that evidence  to a jury there's no way that mosher can understand their about phillips's partner being at hayward later at trial be corroborated by a record miller's lawyer put into evidence showing he was in hayward on the day that mosher is telling  other questions for the government is your question was was that disclosed in the p s r well i think the probation officer was aware of it because of the interaction with no i don't he was aware of it my question was was that i three points i'd like the may st with respect to the judge which is question about whether mr miller knew that mr phillips had been arrested earlier in the day i don't believe there's any evidence in the record on that he knows that mr phillips knows tell us and he's asking her if he's concerned about his friend about how to get in touch with him yet now that you made characterizations understand just what was that what is the girlfriend say in response to when when he's asking to find mostly that is at work and i have to get back to you later well but eventually doesn't she say something like i can't find do i'm concerned or something like that know i think there is something about  with regard to lack of predisposition and right now i think i understand but that's a separate issue from what you think the government did wrong did you make any proffer pretrial about what evidence you might have about what the government did wrong be to the proffer related to motor using any improper inducement realty to the sons the fence i was also made by the defense before trial but the connecting t question about it and that was just completely precluded by the traverse pretrial rule well that's that's what i was asking we really precluded from asking those questions at trial or do we should we're just told that you could present an entrapment defense so i'm sure those questions would have been irrelevant to the trial well i think if the whole defense was shut down so that point you know i think the record shows that the fence counsel once the defense was set down basically most of the trial then cross s and he didn't get that here as the sentencing issue i would just like to mention that the government could have dismissed the prior i believe to get the deal fifteen years but more to the point it showed mr wood the lips his willingness to  all counsel for their arguments in briefing in this interesting case and this case will be submitted and that concludes our business for today will be in recess until tomorrow