and four an indictment was filed in district of montana charging mr kamber and twelve other dependents was that with a twenty six count indictment that last count being a pinkerton theory so two three being in possession of firearms in furtherance of a drug trafficking crime that possession of firearms was alleged to have been committed on december ninth two thousand and three the issue that we're here to discuss today is a and mr mr kember was named and count one twenty twenty one twenty two and twenty three but by the pinkerton theory he's named in all of them so yes we would have to have evidence on all of them and that's the point of this there has never been any evidence mr kimber pled guilty without ever going to trial without ever having a hearing and what is that's what i'm asking this court to do is to send this case back to the district court to have a hearing to determine whether or not he is actually innocent but he admitted under oath that he possessed certain ag as part of this plea agreement responding to questions from the district court said yes i possessed these three firearms and it was in connection with a methamphetamine conspiracy and then the government said what they could prove that the prosecutor operated under that and his attorney was operating under that but there was no evidence after october sixth two thousand and three that this conspiracy was in fact ongoing when in december night two months later he government to to expand the record it is it has been admitted it in the plates and in the court's order nobody understood that the conspiracy had ended on october sixth and indeed this cour accepted that determination that the judge finally made over a year later in its ruling in regards to another conspirator mr garcia this court acknowledged that the conspiracy was over on that well there's a federal things wrong with that first of all we are missing a huge fact that mr kimber had previously pled guilty to the same four point two grams in state district court in front of their state district court judge wives why is that they were dismissed but he had previously pled guilty to four point two grounds the same ones that are forming the basis of this case here today in state district court two as your point to i maybe because i interrupted judge to make sure i'm following your trafficking well i think there's a lot of problems we don't actually have a hearing and the evidence that the government presented was four sheets of paper or three pieces of the initial reports from the police officer and an inventory sheet police reports are not evidence they can't be cross examined they are not an exception the hearsay they have no guarantee of trustworthiness i can't cross examine a police report i can't point out in search warrant a sworn application that was made before judge bar i don't have any of that i don't have the police officers on the stand to question them i'm going to talk about how this car belonged to angela put instead of  kimber i don't get to talk about michael stupor or the other individual that's in the car i don't get to talk about the other evidence that's in the car that could show ownership of these items and this is important stuff i should be  difficulty though and then gets back to the guilty pleas how do you how do you get around that his guilty plea well i think the way we get around this is by looking at exactly who this individual is right i mean some point you have to be able to black man nice ninth grade education unstable family very naive when it came to the criminal justice system is b s i reflects that his only criminal this is when he is one point when he was fifteen during a truancy pat down that he had marijuana that's it that's what we've got and we're expecting him to rely on the knowledge and the information in the intelligence of his criminal defense attorney and we're relying upon  truthful and ethical obligations of the prosecutor to give all the information to show that he is going to be found guilty and we're expecting the courts to uphold justice for just about  good morning lori so for the united states we have to bring this argument back to who has the burden and the burden here is on mr kimber because he has filed an untimely petition as you thomas and leave versus lampert the standard is the schlock gateway requires that mr kimber show his factual innocence to you by proving that it's more likely than not that no reasonable juror would read would have convicted him and show up for their elaborate spat by saying that means that every juror would have voted to acquit and the judge kozinski in his concurring opinion offense there absolutely was a misconception of everybody standing in the courtroom that day at the change clearly that the conspiracy was ongoing but that's not even the drug trafficking offens syllable known for him then you can consider that he had basics he had a scale he had guns all of these units and up to drug trafficking offense and besides the fact that now that was on his personal a gun count to be removed and that can count he has to be innocent of as well so even though there were issues with respect to this conspiracy that occurred after the fact quite frankly as judge people pointed out in his order at happen but you have to look at what kid mr kimber gained from this please even if there are errors with respect to him he gained a lot and he has to meet as judge hawkins pointed out innocent of every one of these offenses in order court for ineffective assistance of counsel that have to be determined now so what does mr camber gain if you wins that he gains an indictment with a lot more counts that he faces because the remedy as you found just most recently january thirteenth in the dive case is to put the parties back where they were at the time of the in effect of assistance of counsel so you're getting that the playground goes away and then you decide to proceed to trial absolutely so mr kamber with all due respect better be careful of what he asks this court but the reason why that is the dire consequences of all of this is because at this stage of the proceeding we are only concerned about people who are actually factually innocent and if mr kimber was then his conviction would be reversed and he would gain five years but your position be the same if he has a b s motion on the first prong under strickland you have to find prejudice under the second prong and we believe we could we could overcome that that he was not prejudiced because of what he faced another gun count this you know charges i mean it he's thank you i have a very limited amount of time so there's a couple things i want to point out first of all the government's argument be careful what you wish for you might just get well that's mr kember's decision he's the one who was sentenced to fifteen years he's the one who has been incarcerated all this time he is the one who brought this petition and he wants to face those charges and that's his decision it shouldn't be the government and maybe that's not what you want but more importantly the idea that there are other gun counts there are clearly within the conspiracy facts to support that there has never been a hearing in this case there has never been any evidence and that in itself with all of the problems that have been associated with this case should be enough for this power to have the police reports the government gave us but that's up they are and what was the government's response to that motion to dismiss one sentence the united states requested hearing to determine the facts well ladies and gentlemen this is what i'm requesting