we've got this recent letter where is your client right now he is in custody in florence arizona charged with illegal reentry ok all right i just want to make sure because it effects insufficient in this case has to do with the unique in her to his manner in which the two mexican citizens undocumented entered into the truck which that that brought them in the united states and i want to emphasize was fact it's really the heart of the case the two mexican citizens were cousins and they came from the interior of mexico to the border looking for a way to get into the united states illegally they had no prearranged plans and they met a random fellow on the street and the person simply said well i don't know how you can get in and then he saw a moving trucks alien smuggling operations folks families just get together there buy a car from a smuggler and come in they're just random events in the government did not prove an alien smuggling operation in this case regarding the financial  motives of the driver right where you can't hear when you're talking sufficiency of the evidence you can't really argue it like here we are going to a jury you have to take the facts with all inferences in favor of the prosecution in this situation so tell us what those facts are and tell us why that's not sufficient right there because judge parrish this mentioned you know they said well how do we get to the united states they point out a track they say there was testimony that they axed at least one of them expected to pay and there was some spare there was testimony about what was in the fat of the pick up and pull something over the top there were a number of people so tell us you know what are the worst facts for you and why that's not enough because that's why you have to do to prevail we don't have evidence truck was movies as they saw the truck it did not slow down or speed up the immediately enter the truck and covered themselves with a chart we don't have any idea where the driver saw them and even knew that these two folks had entered into the truck additionally regarding expectation of payment in the cases where they found an expectation to pay to be sufficient the government has proven an alien smuggling  driver's membership in that organization none of that was done in this case you simply have one of the material witnesses saying why expected to face a certain amount and who also earlier calen we just have that it was fast enough not fast enough so that they were able to go up to the vehicle we don't have an exact sort of few miles per hour you think but they were it was going slow enough for them to get into the truck but there it was going fast enough that they had to quickly get up to the truck as much pressure of the evidence so we have a truck that simply moving at the time and the two of them wanting to hide from authorities as well may have hid themselves precisely from the driver himself two ways to look at it and if there's another way to look at it and there's evidence then you've got substantial evidence that's all it takes but i've referred to the court because there's no factual case it's been reviewed by the new york ninth circuit in this context i p the defendants were found near a bunch of packages of marijuana in the desert the agents tracked the defendant's footprints from where they were found to the marijuana backpacks he was not and the court looked at that circumstantial evidence and simply said it's too weak it doesn't foreclose the equally plausible explanation that he had nothing to do with it and i think that feet is a powerful example of how beyond a reasonable doubt means more than simply making an inference taking a leap of faith that we should make this inference for that inference perhaps there were twenty three people in the truck right kept only two material witnesses and they were only the two that had jumped in at the last minute and we have no idea if the driver even knew about them that is precisely the difficulty in this i literally had to get up there and tell them well there was evidence that surely you would have known these people were in the camp but yet these two he didn't know about but we're not we're not revealing per that whether it's an errand to material witnesses right well no that's not what i'm just what i'm trying to allude to is that because they chose those two the ceria witnesses who had no contact with the driver and had no idea what was going wrong with that truck going where it was going at the time they just took a leap of faith to get in the truck and there wasn't specifically knowingly transported these two individuals the first thing that we should look at is how they were picked up and sauce of the arizona this defendant there is evidence of an organization here and i'll get into that but this defendant was driving slowly through town i believe the record testimony was ten to fifteen and down in mexico that would have been kilometer south mph so very slowly through town when they get in a vehicle everyone else in the bed of the truck is asleep and that's what the testimony was they get in they're told that there a tarp fact there's a carpet for transporting illegal aliens and they're told again and cover themselves up now rational jury could find that when two individuals and broad daylight get into the back of pickup truck as it's slowly cruising down the street in this truck is almost full the evidence is that they're the last two people to get in and then the truck takes off immediately after they get end showing that the defendant was topping off his load and then heading out of town so there is there is evidence in a rational jury could find you would see two because all inference of facts should be drawn in favor of the jury's verdict but i think based on the evidence what we find is that even if they were still laced the driver would have seen that they got in next to the tailgate next to drive were looking in his rearview mirror they would have been the first two people he would have seen based on his line of sight to the tailgate addition then when the border patrol agent pulled these people over what are you going to print from some kind of diagram in the evidence or what you're on i'm driving an inference from what is rational jury would know showing that he knowingly transported these two what about that to me it seems that so the weakest part would be the financial gain what's what does the record show you're on about financial gain the record  it currently stands is incorrect on both of these material witnesses said that they expected to pay and i would refer the court to excerpts of record at seventeen where john doe the minor says that it was his intention to pay for getting smuggled into the united states an this truck was registered in phoenix arizona a jury heard that this defendant had been previously reported from the united states and wasn't allowed to be here illegally so he could not have gotten that truck from phoenix and he could not have registered that he's caught driving this truck said loading up during the day in a border town is sosebee and driving over time to come over on the cover of darkness when you find the crosses into the united states so i certainly think that as in your sheet on hand when there is evidence of a broader conspiracy here and that's something that the jury to use to find that this was done for the purpose financial gain and in the finn intended to benefit from that there's also the evidence that the timing of this defendant would have had to see these people in the back of the truck material witness testimony is that he drove this truck for two to three hours at the border patrol agent was behind it for a matter of minutes i believe fifteen minutes and he to use circumstantial evidence to sustain this conviction and these people did get in a broad daylight he can presumably see them through his rearview mirror and that and and his intent has also shown by the fact that he's driving this number of illegal aliens  at your office i mean you picked the wrong two material witnesses and you're a monster and as the record reflects they did that so they wouldn't have to break up family groups so we were we were stuck with what we had but there is sufficient evidence here and i think the strongest thing that for trace to your question your honor is the fact that when this truck is going through town it's moving very slowly it's been doing this long enough that people in the better sleep but when these two people get in they get in and they testify no one else gets in and it's just that point when i asked a follow up question what happened after you guy and what he took off across in the united states so that shows that this driver was topping off his load and when these people got in that's exactly what he did he left to transport a full load of aliens into the united states and that shows knowing alvarez request and is it your it's your position now it's that it should be remanded that's correct your honor this case is appropriate for a full sentencing remained of the judge in this case following the in the light most favorable to the government the facts that are presented a rational jury could conclude and in fact did conclude that this defendant transport of the chain name material witnesses for the purpose of commercial advantage and private financial gain and this is or or lower below the standard sentencing guidelines because this happened between blakely and booker this may be a case that we see every day failing transportation but it's a very important case because you have a chance to off the whole the beyond a reasonable doubt standard and in this case there is reasonable doubt because there is an equally plausible explanation of what happened based on the evidence it is the government's responsibility to foreclose that reasonable doubt and the evidence when you look at it he's just just consistent that he had no idea that those people jumped into the