good morning i'm my name's david kline and i'm here on behalf of appellant mean you know when i started practicing law in federal court i want to further probably the first trial like every did was a federal drug conspiracy trial and when i did that trial i was i was one of several other co defendants in the case hand we were i was like the new kid on the block and i was doing this trial with all of these other defense counsel years drug type and drug quantity makes no difference and i turned to the other council and i said this doesn't seem right how could this be i mean you know what is all that how could this be i mean look at the guidelines have how could we how could this be the law and then one turned to me and they said kids don't worry about it that's the law let's move on and we moved on and the years went by and a printer came out and after a friend you came out the defense all of us throughout the country started filing these motions in the motions we started filing were you know my client should only have the kinds of level twelve because because you know the drug quantities were not proven to the jury and circuit came out and said kids don't worry about it they all turned to us and they all said to me they all said my and i wrote my briefs to the ninth circuit based upon those issues and and one opinion after another came out and said statutory maximum that's what we're talking about you guys going in meaning us the defense counsel saying we didn't understand what statutory maximum was the statute said it was twenty years and as long as the guideline range was within those twenty years that's all that matters and now i come upon due process and i come upon all of the circuits that have decided this due process you sure that we're now arguing about and we're discussing and they all say the same thing  they all say well we're now talking about statutory matter and they say well the reason there's no problem is because the statutory maximum for example is twenty years as long as you get sentence within those twenty years is no problem you know what that's not what's that's turning back from this statutory maximum is what we have learned from the whole series of cases from a crandell plague little book or statutory maximum is what the facts are what the what the indictment argument having to do with lost and about you know how they the term lost in st luke's case and i was and i can and i was thinking about a mr mean this case in mr minas case he had basically if you look at what he will had been convicted is one is whether or not he had joined the conspiracy a terrorist in time and to whether or not those amounts to which i didn't ask for africa i'm sorry i'm trying to get a general rule i could with you know i think that a person in the  did is that they took that confidential the money that he received attributed those amounts to everyone who was a participant in this kind of conspiracy and determined that's how the entire conspiracy is you're getting a mix of all of the inspectors that were on the take right while you were you were receiving to the way the way you had an individual who was a confidential informant who is receiving payments he would take those payments and we can turn them over to law enforcement i think time and so it was those payments that were attributed to other individuals as a confidential informant was working with the f b i agents every night that he went  conversations are all there that all of the conspirators were doing the same thing and everywhere with a variety of them so you get a pretty good cross section of what the what the enterprise was thinking right i don't believe we are and i don't believe we are and in the end when we're dealing exactly with in this communicate this i don't think it's just merely a matter of saying well this person went out and we're not disputing obviously that the confidential informant received these type of payments but as far subversive and when he ended in conspiracy and i don't think it's merely a matter of saying the entire conspiracy is responsible for x number of dollars because you know the confidential informant received let's say five dollars over six months and we'll just multiply it out and attribute the same amounts to all the individuals who you computed well the way it should be done i mean the argument of course first of all is that it should have been given to the jury in the jury should it determine and and the reason that's important is because of these exact issues and the reason it's important is because we're determining someone sentenced based upon you know speculation at this time based upon based upon facts that are not proven beyond a reasonable doubt based upon and so the way i would do it is i would have had a jury decide the clear and you cited due process you are you question now let's say for a moment obviously that that's not what happened in this case and now we have to go to the next step how it will should last week the chairman of the law should be you know if the court's going to say should be determined by a jury the last should still be determined  and obviously the position that where the fence is always going to take it should always be based upon a you know proof beyond reasonable doubt but even in this circumstance where we have double than individual states sentence basically from three years to six years the burden of proof and minimum based upon holdings that the ninth circuit because i believe there is this double increase would be a least not on a burden of proof of clear and convincing evidence that burden is not upon the defendant that burden should be upon the government and what should be is there should have been an evidentiary hearing at the time of sentencing and which they should have directly computed the last attributed to mr mena when did mr mena start in this in this conspiracy when did he end in you be asking us to do if we agreed with you that the more information needed to be done and never that you're hearing two and zero in on the one thousand nine hundred nine issue or the entirety of the entire event change the whole some more particularized approach yes you're right and that's your authority for the notion that on calculating amounts because i'm familiar least with one case where since i wrote it i can't remember the name of a vote of you know was one of these drug things where they were extrapolating from a course of conduct and i think we said that it's within the province of the district court to make some kind of reasonable estimate of the doesn't have to be an accounting certainty i mean i really because of what the impact that it has on sale and sentence you know in the fact that we have a man who his sentence has now been leveled based upon this circumstance that they stood upon that an individual like that there has to be more than just this you know they we now calm advisory guidelines but it's almost been done with a lengthy advisory thought and we have so much of a circumstance where the guidelines are just being followed and we even have many other circuits ruling that you know if a sentence is done within the guidelines range he you know we are oftentimes not so much concerned about what the supreme court might eventually iran we always just try to do the right thing as far as the ninth circuit sees it in any event this one brief a little other issue i want to discuss has to do with his motion the suppress having to do with you know the statements that he what he confessed and and that whether or not he was in custody at the time this is another one of the sort of pet peeves see as you as a defense attorney in the pet peeve of basically you have it you know the police were mr mean that clearly they have probable cause to arrest mr mena he's a focus of the investigation they bring a tape recorder along with them just to play tapes was not part of this conspiracy if he as far as in the circumstance of whether or not it's harmless or not let's assume for a moment his confession comes out we would still be able to put forward this argument that he would go to every establishment they would come back to the station house and there was a sharing of revenue you know mr mena was not part of that sharing deal ever there's no evidence that he ever got a nickel's worth that i am not saying there was no evidence if there was already there were circumstances in which i believe in one or two times he was with another individual who gave him some money and this from you know was the individual who oftentimes in the even in the record says that the other people didn't care for they some of them were even surprised he had been involved and so they were trying to keep them out of the dark keep them in the dark so to so to speak with that in mind if i may save the remaining time for a bottle if there are any other questions on here thank you very much  on the last eighteen or twenty four months and now that it is becoming more clear as to what all of our respective obligations are i think frankly he's asking this court to overturn supreme court precedent which has just fissures pointed out i think that this is a crime where absent the tape recordings it would be inherently difficult to quantify how much money passed hands these are investigators they go to different bars every night every single day of the year three hundred  sixty five days and they take varying amounts sometimes not on on one day sometimes greater amounts on other days we had the benefit of course of having an undercover cooperating individual who for a period of one year  recorded all of his conversations as your honor pointed out and turned over all of the money that was calculated and i think the district court adopted an analysis that was eminently appropriate given the circumstances of the case but with respect to thousand dollars but if you were to excise the first three months which i believe was consistent with his admissions of i believe it was forty five trips a year i believe that that was a reasonable approach taken by the district court if i may your honor i believe that mr klein did ask him well what approach would you take and he said well i would have the whole matter submitted to the jury for a determination first off that would be legally inappropriate but secondly i believe your hon essentially says there is no rigid formula that is imposed upon the district court in calculating the loss in a fraud case and noteworthy is the sentence of the court and i will quote nor is the district court which i was i recall we good play with the formula hold the government for the formula it was using so once it starts down that road it can say well you may not like the way we got it so just the money taken by the undercover agent who admittedly and per judge as recent linings was conservative in his approach in other words he was not particularly aggressive in soliciting the money and i would remind the court this is based on a factual wiggins actually worked less hours that was in the record and then the other defend dance so that amount would tend to understate the total amount if one were to assume and i suggest reasonably so that the same amount of bribes would be paid to each which would be in keeping with the nature of the enterprise and judge as for reviewing the entire set of circumstances actually said if it would be substantially more than two hundred thousand dollars now for recision as to when nina made his first trip i will have to concede we do not have that in the record i will however again urge that mr mena voluntarily said i started taking bribes in one nine hundred ninety nine that was corroborated by the evidence in the a den into the pre sent judge ezra found that the two hundred thousand dollar figure actually probably understated the total loss i believe he used the flip side of the coin saying that the amounts clearly executed two hundred thousand transcript made twelve of two thousand and five that stage twenty five and i think in the context of reviewing that court's determination and showing deference to the court i believe that the evidence is sufficient to support the finding that the last figure was appropriate and of course the methodology as i had stated earlier it is completely consistent with the book or fanfan and i am a life beyond  that question was rejected by the court and appropriately so i don't believe he was held so they went to his place of residence and made a reasonable decision that interviewing him in the presence of his wife in a basically bedroom in a multiroom boarding house was not conducive to an interview or privacy or safety of the agents they asked him whether he would accompany them to the police station there are many precedents saying just because a suspect of an interrogation  goes to the police station doesn't mean that he's in custody they put him in the room and under circumstances where he was not made to feel like he was in custody not face in the mirror so that it would appear that the facility old and they asked him questions in a conversation tone for how long if i will grant you the entire interview lasted ninety minutes which is at the outer limits of what some of the earlier authorities of this court say but there was nothing custodial about it he was told he didn't have to remain even went and volunteered to have the encounter that i want to ask you questions about your employment as a liquor investigator and i point out also that there were factually terminations to the nature of credibility determinations by the court one of the big issues  conspiracy of them one here i have to confess i cannot recall whether or not that would carry over to the sentencing phase and require suppression in the sense in phase if there were a violation of the system and police station and it's interesting to note that he walked home but of course the police because it was so warm out felt it was necessary for them to drive mr me enough that the couple of hundred yards rather than the saying why