turn up the sound a little bit thank you i'd like to address some of the mischaracterizations that the government has argued relating to what it said minutes proves intent and capability by mr ok the argument in the government argues that in the march fifteenth two thousand and ten phone conference or telephone conversation between roquet and jaguar that mr ok willingly agreed in that first telephone call to participate in this two ounce methamphetamine transaction the transcript of the trial below the law is that and indicates very clearly that there had not been any evidence that this in fact had been the first contact between mr ok and jaguar in fact when we they knew one another yes they knew one another or they knew of one another they knew of one another jaguar was actually related to mr oks wife so they did not want another but we have the background that jaguar was somewhat of a rogue confidential informant he fails to follow the rules of the task force he actually was caught on the f b i s video camera smoking methamphetamine during the transaction of the methamphetamine controlled by however because of bad management the task force did not discover this until after they had discharged  jaguar however there are some significant points to be made the government indicates that mr roquet initiated a three ounce methamphetamine transaction mr ok do you have the three ounces and he said no he has one ounce and the testimony of age of the f b i agent hamilton bears this out hamilton indicates in his testimony in court that on march on april the fourteenth there was a conversation between jaguar and mr ok in which mr ok told jaguar that he does not have evidence is that the only intense that mr ok had was expressed when he mentioned to jaguar what would you sell one eighth of an ounce for so his only intention not even possibility because he didn't have money he admitted could not he could not even buy and supply one eighth but that does indicate what he was capable of doing so given that there is an issue here of ability because he  supplied well that usually is the case in all of the sentencing entrapments it is whether or not to there was significant significant pressure put on to the target that forced him ultimately to provide what was demanded and so this is no different from the other sentencing entrapment cases where i think the pressure is the be limitless pursuit that the government had with mr ok  as we've indicated it begins march the fifth march fifteenth excuse me two thousand and ten and there was no contact again until april the fourteenth say where have you been where have you been or something like no but he did object to providing the for methamphetamine matter of fact when they spoke on april the fourteenth tw ten jaguar insisted on going to mr oks place of work in order to give him the money mr ok was very clear he said no do not come here when you go to my house and me to the source you can give him the money and this is indicated in the appellants excerpts of record three fifty three on that same day seven minutes later eight minutes later excuse me roquet is called again by jaguar and he indicates no i want to come and give you the money again he says no he says no three to three or four times no no no you're going to go to my house you're going to go to my house and give the money to the person who's providing it again that is referenced in the brief so there has there was the tracking from march the fifteenth two thousand and ten until april twenty first ultimately when this transaction occurred so i guess let me just back up just a little bit the error here is the failure to give a sentencing entrapment instructions right that that's what the air is right that's correct and to get an instructional like that you didn't have to establish was more likely than not or whatever that that he would prevail on that the fence right well there was what's the standard the standard for the jury instruction is whether or not there has been pro to the preponderance of the evidence that mr ok had the intent to perhaps commit a lesser crime but the government through its agent jaguar structured pressured in any form according to case law through friendship through harris meant through any form of pressure to arise that the objective of getting him to supply a larger amount that would  link to a maximum sentence and here of of course was those circumstances to answer the previous question it's not harmless air because as the court said in court tears if there's just one well it might have been us versus casey but if there is just one juror who believed that mr ok did not have the predisposition and did not have the intent or the capability that it was mandated by the district court in fact to provide and instruct the jury on sentencing entrapment is all you have to show a reasonable possibility a reasonable possibility urbanites here only efexor the verdict that's correct your honor and the reasonable possibility is the standard not withstanding that the evidence on sentencing extract sentencing entrapment was either weak or a scintilla although the government does side another case indicating that  scintilla is not sufficient but in that particular case which was morton the court said that there was the the evidence was just so so insignificant running out of time in significant because it was a person who was assist asserting self defense against a police officer when the police officers testified clearly a trial that they had yelled stop police many times thank you thank you know i find it interesting for the district judge prior to the start of the trial said i want to get this instruction you have to show what was it upon a fish a case where did he get that from i can't say that i know it used to be the standard in the seventh circuit but it's been they have got away from that in fact i think they had to perhaps but any rate he didn't apply that standard when he decided on whether to submit it and instruction cracked i don't believe so your honor the court's description of the thought process was that there wasn't sufficient evidence without stating what the standard was and as i started t standard it seems to me is more favorable to the defendant but the facts are less favorable they're much less favorable and they're very interesting because this is an on a somewhat unusual case only for the reason that the informant didn't testify the defendant chose not to testify there was no dispute about the text conversations they're all going to foreign language but for occasional words then they said homey in english once in a while so the offer to sell the smaller amount you know if this standard is a reasonable boss ability couldn't a jury find it reasonable instability i would say no because of the uncertainty about what the smaller amount was and the uncertainty about who matter was i break the point that these cases deal took place in two thousand can't take down was in two thousand and three the government was not doing by us here but by walks the government had an informant jaguar's who was solid in the game and who was capable of f sample or something and that there were police around i wasn't totally sure that i understood what was the defendant said to jaguar asked the defendant does mack have said no he has a handful that i gave him just so you could see it and i don't have to me a handful suggest even more than the two ounces that he produced on april twenty first because that's only a more than the defendant we don't know there was no evidence of what hansel we have no idea which is why the uncertainty about didn't get worse say that one on the fourteenth didn't just say that one else was too small  for not doing the deal the day before which is one of the strongest points about whether this inducement was anything but ordinary roquet couldn't produce anything but what he himself characterized as a sample he also called it a handful which confuses me to this day but it doesn't suggest that it was a merchant aboard mout and moreover he confronted the f b i with the question do we want to take a chance by buying now from someone whom we've never seen before we don't know where he came from we don't have a phone number for him we won't be able to get back to him again and and can go off and i thought good i thought the f b i agent testified from his notes that on the fourteenth that the jaguar rejected the offer to sell bouquets offered to sell me about an ounce because it was too small of a quantity rather well i speak subject to correction because the testimony is obviously well i do not recall agent hamilton saying that it was too small a recollection started to give an answer that might well have ended does he have an ounce he said no he has a handful i only gave him a handful and agent hamilton characterizes it as a small but we have no no way to know whether it's a small sample  right so as i said the evidence is undisputed it's all before your honor's the government looks at it and says there's no inducement here but the ordinary the defendant the broker he didn't have to broker the defendant can hardly say that he was pressured even though he calls the pressure relentless he's called on march fifteenth he's not called again for twenty eight days they speak on the twelfth they speak on the fourteenth and the defendant is critical of the informant for not having done the deal on the thirteenth and so your honor pointed out on the twenty first he calls a source he says i want three ounces the informant corrects him it's only to the defendant goes off produces the two ounces and brings it back he described himself as someone who had experience he referred to one of his sources as producing drugs for the seat is a very violent and experienced cartel in mexico he said that he had two sources he had mack and the guy who actually produced pounces on the twenty first he concealed from the informant the identity of his source he said i'm going to go out to victor vale to get it he didn't he drove to south central l a and hung out at the house for an hour to make it look as though he'd gone to victor villa and then he came back and provided the two ounces inducement is no more than ordinary and the defendant's familiarity is strongest argument that he couldn't produce the two ounces is to say that after the deal when he had produced two ounces he said i don't have enough money to go into by myself could you provide some money or to buy for my clients  as highly improbable that a defendant can make out a sentencing trap an argument when the very conversation he points to speaks of his clients he was a broker with respect to jaguar but he was a trafficker in a smaller way with respect to his clients he brokered the deal with the informant and he also asked the informant how would you like to get into business with me providing me money for me to buy scuse me buy more sell to my clients so the strikes me as a perfectly ordinary gamble of a defendant who sells himself in a small way brokers in a larger way working himself up to the trafficking trade and he responded to ordinary inducement ok time  i can help the government regarding the three ounces and the one ounce discrepancy if we look at appellants excerpts of record volume two to fifty seven to fifty eight agent hamilton was actually cross examined he was asked looking at his deep briefing notes of jaguar from the april fourteenth two thousand and ten meeting did he ask the jaguar tell him the roquet told c h s which is the confidential human source jaguar that pereira's who was also known as maque who was the supplier who met with jaguar at kay's home on the fourteenth had an ounce of meth mine but not the three ounces that c h s requested so agent hamilton was quite clear that there was one ounce the government also indicates that they only expected roquet to function as a broker that is absolutely contradicted by the evidence because if he only wanted a broker when roquet told jaguar i'm going to give you the connection that i have maybe you can get something from him he rejected it on the fourteenth when he insisted on going to work because he wanted to get the money ok told him no give it to the max at my house later so if and of course when mack only had one ounce he refused to do the deal so interesting way enough if he was only interested in and know that no one well according to agent hamilton's notes he he said that paris who was mack had an ounce of so the appellant's excerpts of record volume two page two fifty seven in two fifty eight also when the government talks about the thinking of the f b i was that it would be too risky to purchase this small amount handful proved to be one ounce based on agent hamilton's testimony the record does not indicate anything about what the f b i is thinking wise the only thing the record indicates about this one ounce is that it was not the three ounces that jaguar was attempting to get moreover when agent hamilton was asked how was this sting structured as far as the quantity he said they left it up to jaguar to determine what he thought he might be able to get but hamilton did testify that mr roquet did not have any