insufficient evidence of knowledge for the drug conspiracy and third with respect to holding this bramley accountable for the full quantity of drugs so it's our position that judge check ins and magistrate judge robinson repeated involvement and comments during the three times miss brantley tried to plead guilty and it up resulting in three things first the comments improperly directed future plea discussions second they undermined the attorney client relationship and third they so influenced miss bramley by strongly suggesting that there was something wrong with the plea agreements and that there was no advantage to her pleading straight out just to get a mere acceptance of responsibility points that she ended up giving up that beneficial plea agreement and eventually just throwing in the towel altogether and going to trial and you know that she was influenced not only by what she did but by what her attorney told judge chuckin at that third hearing he said to be candid with you every time we come back before your honor it appears that my client becomes a little more confused let me just say it that way and so our position is that the circumstances in this case are far more egregious than they were in baker which this court reversed in baker you had one judge one hearing one set of comments repeated come to have been correct comments by judge check and insisting that mr grant lee would have to admit that she actually knew the boxes contain marijuana that was not correct the attorney of the defense counsel continued to try to explain that to judge chuck and that the plea agreement said that all she had to admit was that she knew or should have known and that was not the problem and in fact the way you know that that wasn't the problem is to look at the second hearing because at the time of the second hearing they had revised the police agreement based on these discussions that went over and over in the first hearing but when they came back with the second plea agreement it said exactly what the first plea agreement did it said knew or should have known so miss brantley was ready to plead to that the first time around and warning to the record according to the record and the defense counsel told the judge judge chacon that her problem was she couldn't say she knew but the plea agreement required not kno it said no or should have known and then of course they get to the second hearing when judge drop ins and throws another grenade into the agreement and and again our position is it is it clear  to come to the view that they do what we have used they simply were on the same page that word agreed well they were on the same page until judge chuck in the interrupted a private conversation with between misbranding and her attorney they were having a discussion judge chuck and just assume that she knew what everything that they were talking about she didn't assume that she knew where that discussion was going when she did not and try to count is not  for her to say wait a minute i heard your congress say i did not and i need to investigate further well i think what she should have said at that point is while if she did hear that she could have said wait a minute i just heard her say i did not so you need to figure this out you need to talk to her or talk to the government and then you know will take a recess let me know what you come up with instead she keeps insisting that  agreement required ms bramley to say that she actually knew and that's where things started to get to graham's when if if the judge had merely said continue your discussion i cannot just let you know i can't take this pl if she's communal going to say she doesn't know anything but you continue your discussion and so finally our position is that and if you follow the language that the court used in baker it is not hard to imagine at after three at least i mean i'm still i believe individually and if not in combination with all three hearings it is not difficult to imagine this miss miss brantley standing there wondering to herself is this guy standing next to me on the up and up because these judges keep telling me that there's something wrong with this plea agreement that i probably shouldn't plead guilty and finally in the end she decides to go to trial which of course was not to her benefit it with respect to your have another minute of with respect to the knowledge requirement so the government was required to prove  with talking about the drug conspiracy the government was required to prove either that she actually knew or that it should have been obvious to her that the parcels contained a controlled substance and our position is that without any evidence of conversations of texts cooperating witnesses cash accumulation there is nothing about a completely sealed partial parcel even if it has a fake address and even if she accepts cash to deliver it in the middle of the street there is nothing on loan about the parcel that proves beyond a reasonable doubt that she's there it should have been obvious to or that what was inside that box was drugs  exactly but that's not what the government has to prove the government must prove the goal of the conspiracy was to distribute drugs and so what they had your proof is that it should have been obvious to her that what my basic theme is this you comport a microscope on the sly and you could inflate whatever it artificially inflate whatever's on that slide but that's what happened here the thing that everybody recognized this was a trance this was an marijuana it came out of washington oregon california arizona there was no evidence if in traveling out there having any at any meetings out there there was no evidence to support judge allowed to rely on that yes but he mr mr rove argue below the judge who can bet most he was a supervisor and he pointed out to her that there was no at this just wasn't of him being involved out west or not i will tell you this this is wrote in quickly where you reversed where you reversed you remember the supervisor is actually a managerial enhancement you've got one have to walk to the relative responsibility of the participants in the conspiracy there is no evidence of him being a do one has to analyze the facts one has to look and see what really happened here what really happened here is there was a there was a conspiracy in which she was a local a localized remember think of wal mart for example people in and in in that conspiracy well and it had a very very very microcosmic level you want to not have a macro level there's no evidence of him organizing she called him a mastermind it just simply isn't any evidence of that in acquitted of the drug trafficking charge by the jury she was convicted of the bribery count at sentencing in determining her sentencing guidelines of the trial court look to the bribery guidelines which then directs you to look to the guideline of the underlying offense which in this case presumably was drug trafficking she was sentenced under the drug trafficking guideline giving her a base level offense of twenty four rather than fourteen had it been done under the bribery statute i submit that that is proper you can look through all of that conduct and you can look to the underlying offense if and only if there's a preponderance of the evidence that the crimes and then i submit that there was not a preponderance of the evidence the jury found that the government did not prove beyond a reasonable down presumably the jury did not see evidence of drug trafficking for the reasons ms brantley's counsel mentioned on the package was never opened there's no evidence of my client was ever told what was in the package or discovered what was in the package or had any reason that she should have known what was in that package in addition my client's involvement was limited to a single transaction on a single day on this was an ongoing thing for my client the trial judge made some comments well look lou she knew what would she was doing and you know she had done this before those are just assumptions made by the trial judge not premised on any direct evidence in this case there were no statements there were no recorded phone calls and any idea what was in that package i proffer that she didn't even have any evidence that there was something illegal in the package she was a lot or technician she covered routes for other melman when they were unavailable either on vacation or sick this wasn't her normal round she was told to deliver a package to someone she delivered the package they gave her cash and she counted that was right there that that you that there's no evidence that she knew it was a crime i can't read her mind it's an unusual thing to accept money for package she also has no does a government employee you accept money for packages that's not that doesn't put her on knowing a member of a conspiracy does not make you a member of a conspiracy unless you formed an agreement to commit a crime and she had no formative duty to her what was in the package in fact it's an element is really not to investigate contents of a package not but that when it's part of a criminal activity isn't there some duty that the person clearly has to to question what's going on here why am i being asked to be involved in a crime you don't think that raises this this isn't this this this argument that a postal workers are not allowed to open a package just doesn't work when it's clear they're involved in a crime and argue that could be the case argue there was no no conspiracy and on her own there's just nothing in the record that she should have known the package contained marijuana as my co counsel mentioned it could have contained anything could have any legal cigarettes giving the deliberate and willful ignorance instruction for the reasons i just mentioned i don't think the evidence shows that she was deliberately ignoring she didn't know until after she got that money and driving away that something was unusual should should she have been more diligent yes but there's a lack of diligence i mean she entered into a conspiracy in this case and that there are hundreds the evidence that she was drug trafficking of it that it does not and then related to those two arguments i'd submit that the government also failed to prove beyond a reasonable that she acted corrupt which is required in the bribery statute for the same reasons a single transaction on a single day on a route she wasn't familiar with following directions from her superiors does not mean she was acting corruptly as required  talk about that there was marijuana there so it's opposed to other contraband right but my point is simply that there's a there's a common sense inference as as the government argued below beyond that there was expert testimony to suggest the kinds of packages at issue here have al drug trafficking and she would know that you should we should she would know that i mean she is a whether she's a letter technician or a postal carrier she would have the regular experience of delivering packages to know that when something comes with lots of  packaging when there are mr rect addresses when there are false return addresses when there are a whole bunch of names for different routes or addresses that would get you past that preponderance of evidence standard in the question as to that that something illegal is happening here but that it's that it's involving drugs that's what i'm missing and made maybe you said i just didn't hear it no i just think it is the nature of an on the street transaction i hand to hand and i acknowledge that if that were the only evidence that we had here that would be somewhat thin but when seen against the other evidence at trial and before this and if you were talking about a sense it is that evidence linked to norm yes the well the out of the evidence  that she has the liver and packages that an expert has already testified have been destroyed of drug trafficking and then there's the additional piece of evidence that judge henderson referred to which the district court found it was objected to which is that she had a child with derrick hawkins who himself was here and sort of built on top of that a a clearly erroneous factual finding and so i think building those two together we get past that standard such that you cannot apply the cross reference appropriately commission or congress that it's not for the court as a matter of first principles which is here to i mean i think that there are i knowledge also some discomfort with that but i think within the larger sentencing scheme where courts have before them a wide array of information that they may properly consider i think that that is all falls within that idea that a sensing judge should take into account essentially all the information available to him or her but you know again as judge having all acknowledged there is some discomfort if a jury makes a finding beyond a reasonable doubt their conduct that someone did commit a crime but that may still count against the defendant but that's a different standard now unless the court would like to go elsewhere i'll just go through the arguments that the as they were presented like you go to the certainly your honor so the language and advisory committee notes of ruhleben distinguish between on the one hand a prohibition on judicial was doing below and just robinson fell squarely within the ambit of rule eleven duties on day one i think it's easy to say day one day two in day three and day one there's a breakdown over the factual basis as judge henderson indicated when a district court judge robinson the the court there is simply going through the standard policy about the relinquish relinquishment of rights and they get hung up on a collateral right issue ruhleben be one says that a collateral right is something the court must review that's where the the negotiations break down on day three i think it's a little bit of a more challenging situation there is a plea agreement before the court so the court still has that obligation to be actively involved although it admitted defense counsel early on indicates an impasse and suggests for the first time that the party that is friendly intends to enter a guilty plea of the counts one and three of the bribery related counts but to go to trial as to count five what judge shock an then does does not engage in plea negotiations but facing a highly unusual situation tries to understand precisely what the defendant is requesting and making sure that the defendant understands to the extent possible the potential consequences of what she's asking for and at the end of the day you know because she goes misread league goes to trial i think that there is no prejudice and particularly when we are reviewing this on a on a plane or a standard finding miss norman she made multiple deliveries of packages which were nineteen in all and again the same in addition to the case of drug trafficking that the expert witness testified to was available to the jury  she was you know in active communication with rowe who was was tracking these packages that came into the lamont riggs postal area and all of these together establish that she knew that what she was was dealing with were were drugs in addition she had a child with mr row again in this court viewing the evidence in the light most favorable to the jury's verdict should uphold that conviction now turning to the three b one point one enhanced meant that the district court correctly applied that here a finding to which this court deference what the court found based on the evidence at trial it's sanders who were pulling packages out of the mail stream they profited in a way that the others didn't the others that the evidence showed basically got cash through these bribery exchanges he by contrast had tens of thousands and then extending it further into twenty thirteen twenty fourteen hundreds of thousands of dollars now i understand my friend on the other side to say well listen this isn't a sort of in appropriately narrow focus but the two responses as to that and i think the court flagged both of them some disagreement in this court's case law either due deference or a clear error standard either of those there is more than sufficient evidence to uphold that the district court's confident use that word finding that that rove was a  instance that was caught on film which included three packages when she made that delivery but i think that gets back to judge griffiths question which is you know how many times do you need to be on notice that engaging in a mr rectitude a man i w s that there are estimates norman for example that she has a relationship with an unindicted coconspirator that she was a floater who subbed in from his spratly and therefore the jury could properly inferred certainly the district court judge tried by a preponderance that she was knowledgeable as to judge chuck pretty much she did not reject a plea but she said i've never heard of this before i've checked with other judges i don't know that you can plead guilty to the two counts and go to trial on the third  and spends a lot of time going back and forth and imagine a defendant thinking i don't know that i want to do this i don't know that i can do this i don't know i mean is there any case that you can think of that allows a trial judge if she had accepted the guilty plea i think it would be pretty tough and then she'd gone but there was that was a very unusual hearing to say i'm not sure you can do this what you want to do i'm not sure you can do it and you talk with your lawyer and then he says i'm not going to do it so to answer the one of the questions built in into that i'm not aware of a similar case but i think that speaks to precisely what your honor has indicated that this is what is a very unusual situation and i think what judge chuck and was trying to do was when the counsel for the defense counsel had said you know i think we're at an impasse judge talking to a number of times basically said i'm not going to get involved with this  listen if this is what you want to do you can go forward and do this i'm not going to advise you as to this that's a an issue as to your defense counsel again never say you know that's a perfectly proper thing believe and obviously the record will what will bear it out one way or the other that at the end she says i will accept whatever the parties agree on and i think implicit in that is if the parties agree on a guilty plea as to one count she has the two counts in trial as t third then that's what she would have accepted ultimately this mr bradley doesn't accept that and again we're on a we're on a plane heiress plane or standard so a clear clearly erroneous finding in this in this highly unusual situation  all right this is going to take thank you aaron or judge henderson i i would submit that with respect to the third hearing not only was what you mentioned the problem but even more egregious than that was the way judge chacon repeated plea questions and we've sent this forth in detail in the briefs repeatedly questioned what's the advantage of the acceptance of responsibility i just don't see what the advantage of pleading guilty straight is and over and over and over again and then on top of that when mr brantley kept saying well i want to plead to these two counts and go to trial on the other one then this other long dissertation goes on about how well you know your co defendants are going to trial they don't want to plead guilty and you're going to be sitting there forever anyway with the jury because you're still going to have to go on the drug conspiracy charge the all of these comments the repeated involvement in this this this attempt to plead guilty was highly improper and definitely requires reversal and the only other point that i'd like to make with respect to this knowledge issue if you look at gaskins gaskins is exactly on point with what we're arguing here in gaskin on page five seventy eight it says even if gaskins did not think miller's activities were on the up and up there was no evidence that he thought they involved the object of the conspiracy for which he was convicted and that is our point that there is no evidence in this case the you know conversations no tax no confidential informants no cash well stand upon the equipage behind it are you know i do think it's for public policy that in this day and age or trying to empower communities give juries the power to makes make decisions on to ignore a jury's finding and use that against a thing as a sentence that doesn't do a lot to maintain the public's confidence in the judicial system and i can tell this court that and united states versus jones three supreme court justices did vote for pro bono and we thank you for your very able assistance