simple and in some ways very complicated by the recent historical events in the new cases in this area the baseline question for this court is whether or not the findings of the sentencing court in this matter are sufficient to allow the kind of that the sentencing hearing in the exact same manner as many many many sentencing hearings prior to the court seminal decision in united states versus booker looking at the sentencing transcripts w thirteen pages of sentencing transcript for two defendants there is nothing on this transcript to differentiate either the consideration given to the thirty five fifty three factors by the district court or the methodology in terms of how those factors were considered and weighed next to the guidelines instead what we have is a very similar very rote procedure i find that the base events level supplemental briefing in this case and the court was very very clear that subsequent to book or subsequent to and line it simply isn't sufficient for the district court to make those kind of finding standing alone more is required at this point both because the considerations are mandatory the statute says the court shall consider and for that reason alone the court has to make those kind of findings but also because this is an area of the law that there was any treatment as of the guidelines you speak presumption of here if and i'm hearing you argue that it's more thirty five fifty three issue is am i correct in assessing your argument mostly your honor i think that the problem with these findings is that we can't really tell if there is a fall issue here or not and if we look at the scant language that we do have in the transcripts of the sentencing in this case we start with the a arguing to the court we've looked for reasons to recommend something outside the guidelines range and the court then reverting to this old language regarding departures which and that time of language and that kind of that kind of understanding and that kind of language is either to use the guidelines as presumptive which is not the correct understanding or to give those guidelines too much weight you know perhaps not finding them to be presumptive but giving them too much weight and stead of considering them to with this court has now ordered that they be considered as just one factor among many so they get back to your honest question if we do try to look at the findings that we have and though there's not about well if i were going to give you any consideration here one of the things that would be about family but the way that i see it here even if i went down to ten years you your son would be twenty four aircraft flight because apparent the couple hasn't had a fourteen year old child at the time correct yes that's crowd on the court didn't look good maddox did consider family i think on some level but decided well you know i don't see that as really being compelling enough to make a difference here well and that's the key is what is the reasoning compelling enough to make a difference the language the court uses when the court makes that statements about you know even if i could i couldn't get down low enough to give you any real help on that issue the court says even if i did depart downward and so based on what we have here it's certainly certainly from the defense court has taken into account all of the relevant factors and that comes from the other recent case of the just our way to that and so i think that it's tempting to look at that statement and try to extrapolate from guideline calculation you only have one minute before you write your eight just so that you know that thank you your honor as i don't i don't want you to use counsel's time you're co counsels time and i don't intend to do that i will address is ok then because the other argument regarding the expert testimony if i have time when i come back one of the things that i did want to emphasize on this point is that there is really nothing particularly remarkable about this argument it is the same argument that this court has applied in other formerly much more familiar circumstances having to do with the mandatory considerations under the speedy trial act for example that was addressed and united states versus taylor by the supreme court in the united states versus white but this court and the court made the rather unremarkable finding and holding that should apply in this case as well which is that if we don't have it on the record we can't tell that it happened and that is the problem i will allow the violation of mr oakley database confrontational rights when the government was allowed to use the codefendant out of court statement to the police as evidence against him at the trial the question is whether the out of court statements in issue here fit the role of the crawford case crawford said when police interrogated witness out of court for the purpose of later using it as evidence against the defendant then we're dealing with a testimonial assertion that raised this possible confrontation and violation well i think if you want to jump to the issue on the cropper thing or will be looking is when they offered for the truth of the matter is does that have to be now well that's correct your honor that is the issue in the case but i think it's important to recognize i mean even the government concedes in this case that this was testimonial assertions and so it fits within that part of crawford being police interrogation and certainly for the purpose of later using at trial then the question will becomes whether there are some exceptions to the crawford rule something crawford sad that takes it out of that rule that otherwise if it leaks those things there has to be an opportunity for cross examination and our our position here if your honor is that simply looking at that that's what one sentence in footnote nine from crawford that makes a reference to i'm not hearsay purposes that isn't enough to apply to this case and say there was no confrontation violation so is it your posit rule that the what the confrontation clause means is that those kind of statements and the way they were used in this case against my client require cross examination that didn't occur but don't if we were to by your argument would be court has dealt with this exact issue post crawford and under these cars applied it to these kind of circumstances but i certainly think that the the crawford opinion as a whole combined with this course decision and the else in the case and to say that you don't have to worry about confrontation here cross examination because we're offering it for a not hearsay purpose but what those three three appellate court said which was constant fully consistent with crawford and the whole intent can create this giant loophole in crawford by accepting you know what the government's claim that this had and not hearsay purvis when really what it what it is is the same thing that was going on and in crawford it's a police interrogation for the without the witness never testifying so i think there's certainly authority in that in the few cases well for the fact that those claims to get around proffer by alleging an anon hearsay purpose are not going to be just accepted by the courts they're going to go with the greater interest that were expressed in crawford among different kinds out of court statements and somehow you know let just about any claim that they're they're good enough and get that kind of evidence in the crawford court said no we're going to put a stop to this we're going to say that the that what used in the trial without having to submit to cross examination that's exactly what occurred here it's not the truth or falsity that matter so much as the fact that they were setting it up that way to elicit the statements for the purpose of later use the trial and then of course use them against my client he never had any chance to explore under cross examination what was her motive what did she mean why did she say those things it was even worse on this record because the prosecutor cross examined my client when he testified about exactly those kind of things he wasn't the right person day and he answered those questions well it needed to happen on her crawford was to have the declarant in  unreasonably harsh turning to the crawford issue the problem often talking about the wife's case is would you like to start with the wife's case i'd like to talk to you about yes she was convicted that maybe i mean i didn't get something right about the fact i didn't get them traveling together all the time as when they're doing it their day maybe doing the same thing but they're going at it different times and then meeting people other people that are alleg agents put think number down there we don't want to give an actual number for miss over again but they pay a one hundred dollars bills consistent with with the kind of currency that that a courier might receive upon finally delivering his or her load they ask  if i may turn your honor to welcome to the cop crawford issue because i believe that the court has of questions about that as the court knows fundamental to the crawford issue is this notion that it applies whe not offered for the truth of the matter stated they were offered because they were force false and that's exactly what the court's order recognized they were offered for the simple purpose of showing consciousness of her guilt in this participation in the scheme and  that's important is it showed that a scheme existed and that's absolutely consistent with with with other circuits i think the court asked about whether there were any other proposed crawford decisions on this in fact we couldn't find a about her her her boyfriend's name and about the source of the money in the car the court said that had a third circuit said profit doesn't apply to this because the reliability of the testimony is not issue and we're not asking you to rely on whether they'll stay on those  admissible notwithstanding crawford because it's not being offered for the truth it's being offered to show the existence of a scheme why do you lie to conceal a scheme therefore it at it's evidence of the scheme the stewart case probably the most recent case on this martha stewart  precludes these false these false statements to investigators because crawford expressly confirmed it's not applicable to the statements that are not offered for the truth of the matter this case is the same case were fought lied about her travel to nigeria her ties to chicago who bought her and her husband's tickets whether she had three reserved reservations in seattle want to ride and did she meet anybody in seattle shield she lied about all of those things and these lies that she argued that the government shouldn't be allowed in this case to unilaterally declare whether it's being offered for the truth of the matter stated or for some other purpose but that's not what happened here in fact there was a mountain of evidence that these statements and no one questioned at trial that these were false and even if there is some question about whether the government should be allowed to define the purpose of the statement we have a court to do that that's what court i think you can state that and i mean the and i think that's what's important about the nielson case in the wilmer case which i've argued in my brief actually support the government's position in the nielsen case there was no question that that statement was offered for the truth of the girlfriend stated to police she had no access to the same with math but the defendant did court had no problem determining that that was offered for the truth the government on appeal as an alternate argument said oh by the way we could argue that it came in for non hearsay purposes to explain why th why the police had to break break into this space but the court didn't have any problem saying that's an ad hoc correct rationalization in fact that's exactly what the court said we don't buy that argument it was offered for the truth because it pointed the finger at the  defendant same thing with the wilmer case there was no question that that was offered for the truth the wife said in the grand jury that she had seen the defendant in possession of the gun and this was a case involving a possession legal possession of a gun the court had no trouble finding that that was  and there must be a showing that the court did that the court nowhere says the district court must mention by name or phrase the factors in thirty five fifty three anyway and in fact it went even farther than that in that said that it didn't need to be a specific articulation of any of those facts when i and i agree with that i don't think you have to go one two three four five you know five six seven or whatever but this was pretty short so tell me how the court somehow covered all of these even though didn't go one two three four five six seven i'd be happy to your honor as a background i just point out that the that the court was well aware of these factors because the brief by the defendant actually mentioned them twice upshot said the same thing i'm not going to be sued i'm not going to sentence to the upper limit for rather than the mid range in accordance with the course of the court's customer standard practice that's all the court said here we have so much more the court stated and and i think the court was was was was already mentioned but he said that and you you know even if i did the part now would i do it on the basis of family obligations but frankly i couldn't get down low enough to give any health any talks about th no but was he required to consider and to show that he considered yes by talking about the family obligations he still that he considered the history and characteristics of this particular defendant by talking about more than your facts more than your family you know y but i'd also point out that he said this is just too much here when to ignore that that goes to the seriousness of the fence the nature and circumstances but also goes to the need for just punishment under the circumstances so i think we cover a couple of bases there just to avoid sentencing disparity and finally talk about the guidelines we can't forget the guidelines are part of this can analysis as well was the best record in the world of course it wasn't i would have loved the judge to talk about each of the factors individually going on there were people that when they finally the law came down that you they could actually get full full consecutive life sentences for each count a lot of people withdrew their own appeals panel is going back meant when they were facing twenty five to life they can actually get could have felt that it had previously you know it might be a different situation so i i you know i'm wondering is it be careful what you ask for in the sense whether they could get more  striking could i understand your honor i mean i think there is that risk and i think that would be certainly at the point if there was a reason and it would certainly be a difficult decision to trust at risk but i also think that on the record here there was a wealth of dependent sentences for sentencing in consideration of that turning again to the confrontation issue i think there's a very important reason in this record why despite the claims of a not hearsay purpose something that the statements feet were being offered for their falsity not their truth and that is that there was no limiting instruction given despite defense counsel's request for limiting instruction just before jury instructions were given he made the point he said ok if this is coming in for a not hearsay purpose at least tell the jury that you know what he did tell the jury that and instead what happened is as as your honor was pointing out the prosecutor was allowed to argue in closing and the jury certainly understood well before that in addition through the closing argument that it was the wife's lies to the police that were being used as to raft evidence against my client as direct incriminating him making him guilty just the fact that she made false statements to the police and again in cross examination of my client the prosecutor made this point trying to ask him well why would she lie in  long treats false statements differently from true statements and the fact that they were powerfully incriminating evidence it doesn't change the fact that they were false and  crawford specifically says we're talking about hearsay something offered for the truth wouldn't we be really going out on a limb that crawford has been authorized to that no we don't believe this would be going well beyond crawford if you if you look at that footnote in crawford that we've all been discussing that they tie to the tennessee versus st as the case some of the other kids circuit cases that the government has talked the stewart case or are some of these other cases they're all talking about a very limited kind of situation where something is offered as a false statement it's not just that it's false that it comes in and avoids the crawford issue false and it shows a planned alibi or in stewart it's false and it shows the defendants were carefully orchestrating and planning to gather what they were going to say and what they were going to say to create the obstruction that's the factor that's missing in this case in addition to that limiting instructions false on it tend to show the existence of the conspiracy you're i think that that doesn't work in this case because it was in questioning by the police after the defendants after my client's ar bearable what you wish for certainly the defense must always be careful what they wish for on appeal i think the court is correct that it is at least a theoretical possibility that this defendant would receive more time on three minutes but in this context given the timing of this sentencing and feel very comfortable asserting both that the case should be remanded and that there's a substantial likelihood that there's a reason for that in this case the defense counsel comes to the court and given the timing of the issues in the case that she has been silent on her sentencing recommendation and defense counsel then says quote i believe booker does give use discretion the u s attorney chimes in later that they searched for a reason to quote depart from the guidelines and that there simply is none in this case and the court then responds well i have to agree it is abundantly clear now that there is a lot more than some discretion that comes after booker and that's the problem in part with these findings is that we don't know if anyone understood those and for those reasons i'm not terribly afraid of getting something that i'm not wishing for thank you thank you thank you