tick but it also counts back up after you've exceeded your time so just a warning to everybody don't think because it's going back up that's we're giving you more it's just the way the clock work so watch your time he's a little min smuggling for financial gain there was error in the season to grant the rule twenty nine motion but this was compound it by a deficient and confusing instruction and further tom pounded by confusing argument by the government the instruction which the district court here quite plainly left out the second level the second component of specific intent required for aiding and abetting under moon yes this was that  defense is interpretation was a correct interpretation of the law but it simply preferred the wording of the government's instructions the government also intended that it was covering munoz requirement but the problem is simply the instructions and by the government's argument which failed to distinguish the different theories of liability it was arguing or the mental states which attach to those two different theories that the defens substance to the argument but i have real difficulty applying it to the facts of this case because your clients the thoughts was that she didn't know the alien was in the dashboard had nothing to do with financial gain and the jury plainly didn't buy into that defen because they found her guilty of transporting the illegal alien in when it comes to the motivation when we're dealing here with a chinese woman and mexican smugglers it's not real hard to figure out what anybody's motivation in the scheme had to be this is not some humanitarian effort to bring the beleaguered person so i look at these facts and you can parse back and forth between principle then aiding and abetting is that her financial gain or his financial gain does it really matter in the end in this case is there any reason to think that that financial gain is going to really be a problem for the government to prove on anybody's part that's true your honor but this is the court has pointed out and when you know this for instance that's simply saying that somebody will profit is insufficient your attack is efficiency the evidence and we're and juries allowed to consider the absence of other motive seems to me as to both the defendant and now forgotten his name but the guy who's supposed been trying to sell the car across the border their only motivation on motivation makes sense in this context for both of them is financial gain so it sort of doesn't matter to me whether the jury has to find either one they're both kind of paint me obvious i think the problem with the instruction your honor i believe i mean i think it's an accurate statement of the fact that there was only two two factors which the government's relying on here one is the negative implication that there's no other motive and in fact the comparison in the case law no case is ever held at that alone is sufficient to find that someone has these required intent no cases have that it's always been in combination with some other factor the only other factor which the government relied upon was the presence of five hundred twenty dollars as far as what she was arrested now there was a  record for that that actually is more plausible than the government's explanation of being a lump sum smuggling payment pre payment by intercontinental smugglers in fact this more  explanation accounts for all the money to possession not just the five hundred twenty dollars but the mexican currency which he also had so it's a more possible explanation whether or not simply the absence of a more plausible doesn't necessarily when you know sufficient of the evidence motion know why why why is that right i mean just to pick up on what judge cliff and said if the crux of her defense was i didn't know the guy was there and the jury had an opportunity to observe her demeanor in man or while she said that they could decide she w and they could disbelieve everything else she said i mean like why is that an appropriate thing for the jury to do your honor i don't believe that simply the fact that the jury found that they necessarily had to find that there was knowledge involved that that's the same thing as the specific intent requirement you can't make the leap from knowledge to specific intent to financially game there has to be a specific finding in the case of an aiding and abetting to specific intense have to be found and supported by the record that europe has to recently find beyond a reasonable doubt to specific intent and on the principle there at least has to be want to dish out specific intent those are two separate mental states and the fact that the jury necessarily had to disbelieve in this morass about her knowledge doesn't necessary believe that they would accept that she ha specific intent but there's a relatively limited universe of reasons why she would bring an alien across the border in this manner and if they don't believe her explanation what other explanations are there respectfully your honor i would disagree i think there's an end infinite univers of reasons why somebody might do this and the thing really can't it don't i today on the sufficiency of the overall scoring yes dr those are separate claims i believe that the evidence was not sufficient for this ok but that the problem was compound by the it should not have gone to the jury in the first place but since it did go to the jury the jury was presented with a which is the closest case to the facts which support the substantial risk of harm the governor the jury hears specifically rejected on the special verdict that there was a step stansell risk of harm the district court found on explicitly on a preponderance standard that that was not the case that found the enhanced meant this was plain air and clean air which the government concedes by its silence the government fails to address this argument its response to brief and by the case  cited in my reply brief that in the case the government has necessarily conceded that what difference does it make a difference because there was a mandatory minimum on count three you know the difference is the fact that as in staff and the controlling case here the potential increase by the enhancement was twelve was doubled the underlying guidelines range also it's like it's like hopper because it was a six level increase so there are similar cas both pre book or in post booker cases this was found to be to satisfy the disproportionate increase of the sentence which triggers the clear and convincing evidence standard that was not apply here was explicitly the preponderance of i'm sorry i didn't ask my question be a harmless error this is an actual mistake of law and the court has a duty it's a separate account as shown by the fact that there were two separate special assessments opposed to separate punishments the court has a duty to correct the sentence if there was there but it wouldn't require anything other than a supported on the evidence not only was it not supported by the evidence at the required standard of clear and convincing evidence but also as i pointed out the comparison with the case law in particular miguel for the only point where factor is just simply no comparison misirlou simply overheated required maybe fifteen minutes of cooling down in some liquids and with never admitted the hospital never given any medical treatment and most importantly paramedic tetley testified that once there are some arguments in our answering zarif that could be interpreted that way and to the extent your article and circles are used that way i would move to withdraw those arguments we're certainly not retracting from where we were and i think defense has some argument saying with regard to the instruction that was given it can be understood the way that we commonly believe the law requires but it could also be understood by a jury to to  out of that the financial motivation for this remember if the jury interprets that instruction as being the defendant intended to gain for herself financially or she intended for the principal to gain financially either one of these sufficient theory and it wasn't but and i think on the facts of this case as i guess i've already made clear i don't know that it makes any difference but i can imagine situations where  two in this situation i'd like to focus on the instruction itself and that's it for twenty eight of the excerpt of record and the specific element as the judge instructed the jury was that since the moment given that the student knowingly intentionally aided counsel commanded induced ofer cured that person to commit the crime of bringing in alien for financial gain so on and earlier in the same instruction on the n let me try and i think you've done the right thing in pulling out the instruction itself how you parse this sentence and to me the question is really where the for financial gain goes right is that a description of of the crime which is that defendant aided the principal in a crime the principal is committing or is it a description of something relating to the defendant who may be an aider and abettor that is the crime commit the crime of bringing  and the defendant did that for financial gain i as worded it seems to me that for financial gain it's one of those kind of clauses we learned about in fifth grade but it can modify either of two things and we all understand that there's a crime bring in a million for financial gain and it's not unreasonable to think that the jury probably should understand because there are two counts here and the for financial gain that makes the second one separately but assuming too much legal sophistication on the part of jurors is dangerous and so  i hear the defendant's argument and i can imagine circumstances where this instruction would trouble me a lot more with regard to what we're quire meant is is there to demonstrate financial gain on whose part right  the end of this instruction was the following phrase so after saying that knowingly intentionally aided another person to commit the crime of bringing an alien to the states for financial gain they want to tack on the  in any way make it improper for the district court rule given the betting instruction but i do think that the argument that the defense raises that the government somehow exploited or exacerbated th opposition to the plain air argument frank i think both sides are are almost arguing the same thing as counsel stated when he responded to the question that i believe judge fogel raised there's there's no prejudice because of the possibility that the for me if the judge is sentencing on separate counts and everybody understands and he says the sentences are concurrent the only one that's really going to matter is the longer one that doesn't cause the court to say so i'm not going to bother the court does sentence on the second count and does so in part because it recognize there's a possibility that something happens to count one so the judge can't disregard it on that basis or at least he didn't articulate any reason like that to disregard curing convincing standard i think we have a hard time taking as a given that this count doesn't count so it doesn't matter that it doesn't really affect anything so you don't apply the right standard i understand the same justice and i agree there is no question it would be a very risky and questionable for everyone even if it winds up quadrupling the sentence on that count i think that that certainly is problematic but when you look at the record here where there was no objection to the use of the right to play here i understand your gram plain error i think it's difficult for ambiguous but i agree with you i think that the the better reading of state is that you look at the ultimate sentence on the on the pitch account but i but i still think that again returning to the issue in this case we look at whether the senate can show any prejudice there is no prejudice because it wouldn't affect the sentence and respects i disagree with the defense regarding the comparability of this case to the other cases in terms of the obviousness of the extended beyond the immediate context by the floor is garcia the unanimous panel restricted it to the immediate local contacts with just shows that even well trained judicial minds have trouble dealing with these kinds of ambiguity and certainly an ordinary juror would as well the standard here under middleton versus mcneil five forty one us four thirty third is reasonable likelihood that the jury would have misunderstood the instructions most of us aren't smarter than fifth graders