y the requirement is probably the most important of the two the purpose of the necessity requirement it's when sure that a wiretap not was ordered to did you asians were traditional and best a good technique would suffice to expose the crime and in this i ming and the other agents from the f b i and the e p a had multiple traditional of the technique that were working throughout the course of th as well as the leadership of people in the organization he obtained thousands tens of thousands of dollars with the amounts in quality of information that he gave to the government beginning in two thousand and four and going  give information critical information i will leadership roles and how he organization was it's that up including a former national treasurer who was able to give information to the government about how the outside she was outside state of thousand and seven that were extremely helpful in getting information specially about the outside chapters you had a whole camera at the clubhouse that was able to monitor the move goings of the different individuals including  when the slot machines were being brought in and out of the clubhouse which was important in the gambling can only run so just to say that this total review was necessary if bashfully for seven months is a complete fiction let the government argues that the full scope of the criminal enterprise could not be determined without the wiretap and that the wiretap authorization was necessary that even though they had some getting and information and the answer clearly here is yes they had a can search warrants through all the rest of it they had information that was coming in was fresh th his phone to find out on the evidence of the motorcycle club judge it wasn't necessary because they had the other up they had normal investigative techniques that the normal  and other people were were monitored but in the in the where tech order once they learned that in a particular call that it was not related to the thing i'm investigation didn't the order required them to comes just as a matter of backdraft this started out with court appointed counsel and shortly before trial his family was able to retain constable myself and mr pitts we met with court appointed coun agreed to a substitution of attorneys and then the judge required a hearing where he wanted everyone present and asked a bunch of questions about whether or not we would complete the whole case whether we would be prepared and whether or not mr would be responsible repaying the amount that was a by c j and then why didn't the judge cleveland allow the retained counsel to be standby counsel and to assist with the trial and there was a statement i think on the record that that was acceptable to everybody or we would follow whatever order the judge required us to follow and we would not interfere with miss stout who was court appointed counsel and but when you have counsel of choice that attorney has to be responsible for the defense of the case and that's the court order clearly states it says that the council could not interfere or impede in the court appointed attorneys direction of the defense that's the whole point of having an attorney is being responsible for in the nature of the defense that's the appealable issue but there's a little bit there's no conflict with the the two attorneys the two attorneys not understanding are really in sync but that's not the test for counsel of choice what your honor is referring to is whether we would be raising an ineffective assistance claim as the u s supreme court stated in gonzales lopez that's irrelevant the done differently is irrelevant it's the fact that the defendant was denied his counsel of choice makes that structural error also that it was it was the request for substitution which was made i think two months before trial was a  west well i don't know of any case that says there has to be out three months or five months or even two years for that matter don't you think the trial would have to have to been delayed if if judge cleveland had allowed a complete substitution occur two months before trial if we would not have been prepared i agree that we would not have been able to or judge clinton would have been in his right cannot allow us to appear but we were prepared it was two attorneys we were working on the case as it turned out the case was delayed another month by other means though we were fully prepared to go and we were prepared and that would be the reason for judge clearly and to deny counsel of choice but that wasn't the case here we work or pair were prepared to go we were not allowed to conduct the defense and that's really what an attorney is supposed to write any further questions judge for heinrich that you don't know or you'll have your eight separate jury instruction arguments but i want to limit it to the three most significant and critical issues both for the defendants and for the intent instructions under michigan law so the st is a dispute between the parties is the standard of review and we have raised these as constitutional is hughes and a new process and the middle ten decision and also questions of law and those are reviewed by this court no not an abuse of discretion as the government cla so st on the rico conspiracy elements the government invited the district court and in fact insisted that there would be language the hypothetical existence of all the elements would be instructed to the jury and they were wrong both as a matter of law and as a practical matter as a matter of law this court is bound and sixty two d requirement number one and whether or not there was sufficient evidence so you're correct to the extent that they didn't address the actual question of jury instructions but what we do as judges and lawyers we look to the announcements of the court about what the elements heart and then we draft jury instructions consistent with the law so that's what we've done in the patent jury instructions and unfortunately the th circuit does not have a pattern journey instruction i recall conspiracy so what we do and what happens that crossed all of the districts in all of the circuit courts existed the name defendants were so cheated with that and agreed that's the important language to participate in the conduct of its affairs which affect interstate commerce and through a pattern of racketeering activity so what we did in this argument is we looked to see whether or not that language was consistent with the pattern and my don't model german struction in other circuits and in the circuits but even in those particular circuits there are conflicts among the panels within each of those circuits ok they're not here you're here the charges conspiracy is it not yes is it isn't conspiracy what prospective that criminals look credible a criminal enterprise is a stamp list or will be established that that kind of a conspiracy looks forward  and so here was a conspiracy the that would establish doesn't fit with the charge in this case the jury was instructed on general principles of conspiracy as you suggest griffin but there is a big difference between not being completed which is the language in the general conspiracy are instruction and not existing in any form that they're not the same thing so not existing in any form is a lower standard for the government to be so that would be language it is different than what the court  for example in salinas so legally there's a problem but there's also a practical problem judge griffin so when you say isn't the would be language consistent with conspiracy law what is a jury supposed to do juries determine past events this is the practical problem of these jury instructions they are not asked to speculate about what might happen in the future or to look into a crystal ball to figure out what it would be that's not their job their job is only to look to see what the facts were made can determine nation of what the facts are apply the law and reach a conclusion so that would be  language that the government in the fight it invited the district judge insisted that they include on all the elements creates this on temple position for a jur so what happened in this case is the government only charge a violation of federal law without specifying in the indictment the amount and the significance is  that if you're convicted obviously under rico conspiracy charges the maximum penalty is twenty years you can only be enhanced to a life of fence  bet is mandatory if it's charged in the indictment so the government did not charge an amount in the racketeering of acts so the racketeering acts would have to specify that the possession with intent to distribute it to distribute was over five hundred grams they didn't do that so we asked judge cleveland to instruct on the liver over five hundred grams of meth never charts and as racketeering act which means that the sentence and the conspiracy charge must i joined the arguments of other counsel made here today i will note that the that the government objects to mr vandeleur joining to sentencing arguments  document seventy five filed march th its government issued three b in the reply i just want to bring that again to the court's attention what's the objection for you adopted by reference the other counsel i failed to do it spend the bulk of my time talking about the issue involving the agent in charge agent swimming in his testimony testimony that was persuasive that filled in the gaps that made the nine suspicious that talked about having a cold meeting the purchase of mets precursors your honor it is right out of the risks talked about in freeman freeman is binding precedent in a published decision on this court in the circuit there certainly is a six cert there is certainly a circuit split and we do have cases like kilpatrick which i would suggest this case mr van direst case is factually different from but mr agents lemming's testimony wreaks of all the risks that are pointed out in in the cases like freeman to patrick and others when they talk about how the agent testifying in this way violates confrontation usurps the rule of the jury of all of the requirements on the proponent of the evidence under seven o two to present that witness as a seven on two witness your honor b i find it interesting that the government's brief hammers on the idea of only one of the government's requirements under seven hundred and one net being the idea of whether or not the witnesses testifying by personal knowledge it ignores the other two requirements whether or not the whether or not required but number two being whether or not and i'm sorry requirement number three is what i wanted to talk about whether or not the witness is a disk i seven o two witness whether this was really seven o two testimony and of course the nd requirement being isn't even helpful is this something that the jury doesn't understand in its own personal experience so unlike kilpatrick where the government witness was st of all interpretation tax not recorded telephone conversations but was interpreted things like the big one or the boss as meeting specific technical things like the main contract or a specific individual they never got into that kind of continuing summary testimony that oh by the way just happ always support the government's theory of the case i find it extremely extremely interesting that the government as i said has gone goes on for pages about how  based on the context of time the transaction of a call as well as the investigation that was going on at the time what did you understand mr rich to be referring to when he said it's here now the next question and in your opinion based upon your investigation in this case and your review of the calls in this case based upon that and my experience working drug investigations yes he goes on to in that exchange in your honour's have this is part of the rule five material that has been submitted in the case you have the actual call that was played the jury in it say in exchange it's an exchange your honors that there doesn't need interpretation but one of the problems with all of this is is is is is mr craftsman cited in his brief is a conversation where mr van diver and i and a codefendant are talking about mr van dyke being sick and the codefendant saying well once you get some cold medication on that on that tape itself if you're honest listen to it your mr van driver is heard coughing your honor as mr craftsman does a very good job of arguing in his dreams a lot of that material is not only missing from the government's brief but it's but it appears very clearly in in the call your honor copecks rick is an interesting case because the government wants to analogize this situation and say and claim that it is more like the kilpatrick then than freeman which is completely untrue i see that my time is up so i'm happy to answer any questions but i would finish by just simply stating this this is not a case where like in kilpatrick they were interpreted texts where the agents were not giving opinions about the case but rather specific words in this case agent fleming summarized testimony vance to process the government's theory of the case and was constantly advancing in the idea that that the normal phrase does in otherwise innocent  please the court in sydney christ man an attorney representing the newly senate patrick makes him i would st turn to my sensing issue which was issue seven issue six in this case the district court and the false memory quote i recall also testimony that he mckeon always had at least an th of an hour and a pile of methamphetamine or went on instead of a curse on us quantity then to a distribution quantity was a false memory the sentencing was almost four years after the trial in this case the trial in this case concluded february th two thousand and fifteen the sensing was november of two thousand and eighteen there was no testimony in either trial won nor a trial to michigan clubhouse there was no testimony that mcewen had anything to do with this it was no testimony that we killing was in that states the killing was never a member of either one methamphetamine with charles casey while and it was in the courts specific instruction based on that instruction which was before the argument i counsel i argued it own three if you can see it this is the indictment twenty three dollars named defendants in six states california alabama ohio michigan indiana and i've missed it to be found it would be charged with conspiracy with anyone within those six states seventy seven thousand people and it destroys the defense or you'll have your two minutes rebuttal let's hear from ms davis thank you people during this time the court while it's actually i went back and read it's not pot clear which the judge ultimately based the meth there was a pseudoephedrine spread sheet that the government presented that the court did not take time to contemplate to deliberate over to consider whether or not you know  williams cooking by himself or april cooking by yourself people who were not necessarily involved with the disciple or the disciples the alleged conspiracy right ms davis your client received  because what this court held in lauriston that a guideline calculation error is harmless if the district court specifically would have imposed the sentence regardless of the guidelines range that it's not what we have here that there was this error calculating guidelines range and if you can't tell from the record this court didn't say well if i'm wrong i'm still think this is the appropriate sentence it was the court big no of knowledge the possibility of being wrong and just imposed a sentence based on it belief about weight about injuries that mr mcclure did not suffer about involved tying lengths of involvement that was not based in fact so no it is not harmless error when you look at the film total of everything the court took into consideration in s comparing local defendants and the court rejected all of them and mr truong southie is just not that special he can be compared to other  the district court i have the same perspective this court does i have only seen the official record of case and the district court again and again rejected clearly stated law clearly stated guideline case that certainly were not actually facts they were false to and i'm not saying lie and say it's it's just not wanting to be dissuaded from his version of  almost seven or eight weeks later at the scene of a codefendant doug who referred to michael rich while there was a discussion of the various roles of people and their individual backgrounds and with regard to m rich the district board said it was a person with one quote out the door and one foot in the grave one foot in retirement and one foot in the grave and i think that comports with a one sentence if you were a member at the time anything was committed anywhere in the country then you're with on if you were a member at the time that anything was emitted anywhere in the country then you could reasonably rival that the point is mere awareness does not create criminal responsibility and in this instance mere membership in a motorcycle club does not  cause or equate to criminal responsibility the district judge at the time of the ruling on the rule thirty nine dollars same time of being three years after the trial noted that the motorcycle to do you think doubles disciples is just a mere motorcycle club nothing more it's a motorcycle club and some of the members are criminals no question about that jane do you think do you anyway this is more than a mere motorcycle club is it pardon me this is more than a mere motorcycle club well do you know the district judge called it the motorcycle club with national as ok so you have knowledge that it has criminal purposes to do with the motorcycle i had knowledge that there were criminal and criminal hidden fired in various acts but whether or not michael richards responsible chair that's a different issue i understand that yes  at trial it says case in chief during any criminal prosecution so the government tending that this refers only to a criminal trial when that's just something that is assumed by the government when they presented this in the in the profit is it doesn't make any difference if if we affirmed judge cleveland's finding of fact that there was a reach of the proffer by your or your client that he that he failed to comply with  the problem with that but i don't think that changes the error that occurred at the beginning so the fact is i mean if and i'll jump i'm sorry to interrupt you you're on you know if if judge clearly this is correct the time there's been several facts in the record that demonstrate that mr corsan a did not in fact breach this agreement and that finding is in fact clearly erroneous and in fact based on false statements or false perception of of the of mr sonner statements and the omissions because they're certainly not saying that mr corsan old lied during the proffered instead the breaches made but that that the letters they're referring to letters and testimony concerning statements that he made allegedly to a one to two years prior to the proffer interview how can statements that he made to his girlfriend on purpose from that proffer interview a year to two years later so i see my time's already up would you like me to continue your jury findings but then we would also point out that with respect to the sentencing guidelines the court failed to make a appropriate relevant conduct finding as to drug  if you personally maintain the premises and that was clearly not the case that the court applied this the relevant conduct analysis which i would argue also was an accurate to begin with because the court conflated pickerington liability with relevant conduct so you know when when we're looking at the case law you know the maintained press that the maintaining of a drug premises has to be personal mean it has a statement which agrees with you as to the principle of law i guess the interpretation of the enhanced meant but that wasn't really the issue in miller wasn't well in terms of whether or not it was it was the crux of the issue  miller i have to concede that it wasn't the crux of the reason for the decision but it was it was part of the court's analysis in that case ok so i would do the meet the issue was squarely raised in front of the  address the same issue you've raised and if we we rule the other way and i know holds as an unpublished opinion but nevertheless we would create a conflict with the circuits with the young published opinion what's wrong with the homes opinion well what's wrong with the homes opinion is that it fails to recognize that the plain language of the guidelines which states that you know the defendant has to maintain the control of the premises so  it's reading something into the guidelines that is an on in the in the reading of the college it's not on the face of the guidelines it says you can also apply this to relevant content if anything it's going back into commentary perhaps or something else  d that that gave the court the idea that relevant conduct applies to that enhancement but on the plain language of the of the guideline itself it says that the defendant maintain rebuttal let's hear from the government thank you so that the court can look at this analyses and decide whether or not the necessity test is met and that's what happened here if the court looks to wiretap application there are several pages in which the agent discusses each of the potential other means of investigating the case and why they would be sufficient to thoroughly and effectively investigate it especially to the point of identifying leadership and the leadership roles d of individuals within this racketeering cries wiretap was directed to the phone of mr daraa doesn't limit the analysis to whether or not it was necessary only with respect to mr daraa the necessity analysis goes to the purpose oh was to look at the communications between mr dollar and others in d fact a good part of the affidavit goes to show you the frequency of his communication with jeff smith  definition so that the government does can you again just speak to the standard that the government uses in this case to prove association in this enterprise and i don't want you to go back to the testimony i mean to your evidence is respect to each of the defendants that but there is a there is a standard that the government has a sp that the conduct of each of these defendants meet in order to have to bring that within the ambit of this so so what's your general stand is it three things you just mention is that that is at the complete standard well the standard is at all of the factors that i've discussed or that i've mentioned to look at the organization or to look at the common purpose or purposes of the organization members of the organization that shows the common purpose of maintaining discipline within the organization just tributed mouth oh both within and without the organization in vas quantities in manufacturing math and so your honor has suggested that i not go into the details and i won't but there was a budget evidence as to the roles of each of these d our position is they were members of a racketeering enterprise and you know it's just like how many how many of them pled guilty all of all of them except for the and he was directly involved in the obstruction of justice relating to mr custodial in this case it was one of the people who put pressure on keith mcfadden to testify by judge whelan as to whether or not he always was a walls but the fact is that there was testimony that while he was a member in port huron michigan he received eighty i believe it was from jeff thing is that it writing in their final response to the court's request for information they said very clearly that could be or could not guarantee that they would be to allow them to come into the case ultimately to allow byron kids counsel table with mr and allow them to work together as they said they would be able to work together and there has been no indication any substance subsequent conflict with or problem with them working together there is simply no basis on which to find that mr was actually did not counsel of his choice his primary choice byron cross examined many of the witnesses and the closing argument for mr witt for case and never suggested that he was being impaired or impeded in representing mr with  and that's consistent with act once on of the nd circuit and it's consistent with the pattern jury instruction in the rd circuit other circuits have pattern jury instructions that in a pattern jury instruction of this issue i would recommend the rd circuit bottom line is the instruction what's correct but even if there if there is some question about that hat the fact of this case was tried and approached in terms of actual existence of the enterprise the enterprise was proved and the evidence was certainly sufficient to show the other prize as i've discussed earlier in th summer in regard to the instruction as to would have you would have language meet you cite authority on the issue direct of florrie from the nd th th circuit there is out in our court and other circuits as to the need to to true and actual an actual existing conspiracy is there any direct authority contrary to the direct authority issue one way or the other as far as you know there is no direct authority to the country i know in my research i came across district court cases that support my position but i can't say  bit of the testimony on the th day of trial before there was any freeman objection what happened on the th trial is that through the testimony of agent fleming the government in both of those instances the testimony has the purpose of placing the recording in context so that then the jury could listen to the recording in context and own conclusion as to the meaning and the interpretation of the recording so for example the nd the nd conversation d that cited by the defense has a great reference to in the testimony and it's to whether whether it relates to you fredricka and there is an objection and the court immediately immediately addresses i terms of this is just a place this reporting in context and the interpretation of the recording and the interpretation of this meaning is entirely up to the d jury and it's the jury's determination as to the meaning of the repor on didn't get there but he suggested that he was going to talk about the potential for error in the jury instruction with regard to the elements young but in the actual record in this case and then the request for instructions the defendants made no factual argument or mitigation actors so your argument is that your argument is not preserves supplied a member of a conspiracy can be found responsible for any other activity that's a reasonably foreseeable and within the scope of the conspiracy and certainly here it was reasonably principles for maintaining the premises but there is another issue that was raised or at least discussed in response to judge griffin's question and that's the issue  did not specifically alleged drug quantities of over five hundred grams of methamphetamine in the th superseding indictment that was the basis for a trial to that was a raised pretrial it wasn't raised at trial it wasn't raised at sentencing each of these defendants when he was arraigned scientific knowledge of an indictment that's a form that we use in the eastern district of michigan in which he acknowledged knowing what he was charged with and knowing the potential penalties that he was charged and each of those acknowledgements included acknowledgment that he was exposed to a potential life sentence on both counts and count three the methamphetamine conspiracy count which did contain a specific allegation of the drug quantity so or at trial that finding was not clearly worldliness it had a clear foundation based upon omissions because it omitted information regarding the role of band diver of pure manna from his mexican connection that he provided for rich for resale so there were significant omissions from his pocket dr griffin asked about well what also the fact that his girlfriend and correspondence with him in which he acknowledged that he was concealing information mr robinson's response d was this was before the fact and that's true narrow drug and gun charges back in two thousand and six in federal court he had an earlier and that's the proffer he was talking about in those letters to melissa all that together there's a clear foundation providing that he reached the terms of its proper riemann there was no error using that information either in the grand jury or at trial sorry about that to the extent that i've come to loot arrive confuse you two standards of probable cause and assessing with the title three i want to take a step back probable that both elements have to be shown in order to get a valid acquittal three wiretap probable cause as this court knows is a fair probability that contraband or evidence of a crime will be found in a particularly case the necessity requirement goes to the investigative tools you who investigate that case and my argument in this case is simply with the number of cooperating witnesses the number of confidential informants the number of people who are assisting the government every single step of this investigation beginning in two thousand and two there was simply no necessity for it to wiretap paul dire a strong j was doing hand in hand vice what a much better what's what's a better indication that individuals in this organization were dealing in drugs other than handing and buys a direction to the f b i he was wearing wire taps into the church meetings that could  anything and everything that was going on in the church meetings there was another cooperating witness was also doing hand in hand byes there simply was no need for this extremely graphic and got to gate of tool they were getting the investigation going whatever whatever they were finding they were investigating this case normally with the regular and normal investigative techniques finally on the sentencing hearing i just want to bring up is what mr morgan talked about with relevant conduct you know the judge made a determination in order that you were wrong you were responsible for everything that a current that day that you became a passion member unless you were called arak and they held him responsible for two murders tha because basically says that the judge could have denied substitute counsel we don't know that that's not what happened that's purely speculation and we can't really address th such a right as to whether it was good night the defendant need not demonstrate an actual attorney was defective and he need not demonstrate that he was prejudiced by any supposed to defici what the court has how is that when denial of counsel of choice occurs everything after the fact is totally irrelevant and it's our position that when judge will and for the order it's dating specifically that were appointed counsel would basically do the direction of the defense and retained counsel both myself and mr pitts were not to otherwise interfere or impede with her direction of the defense and that she may allow us to assist in trial preparation shows clearly i think clearly that we were not counsel of choice we were not allowed to be counsel which is the whole specifically directing the defense case and again i would argue that had judge cleveland indicated that retained counsel would be directed defense and that court appointed counsel could assist retain counsel's direction we wouldn't have an issue here but the fact of the matter is what ended up happening is judge cleveland decided who the better counsel was in this case rather than judge i want to start with the jury instruction on the rico conspiracy because both judge griffin and mr light asserted that there was no law that supported the telco decision i would draw your attention to the pattern or model jury instructions in the eight and the th circuit both of which support our position and i would draw your attention to the decisions specifically set forth in our brief on the st nd forth seven and ten circuits that all support our position about what are the elements of a rico conspiracy and under subsection deep with regards to the elements you know the government says it salinas addresses this issue in telco is mere dic up but i would suggest that you look at salinas because salinas does not answer the question before the court resolved the issue at all the issue in salinas was whether or not an individual  defendant had to himself agree to two or more predicate rico wax and the answer to that was no that's the only thing that selina stands for nothing more so with regards to the existence of the enterprise judge griffin and judge donald address i would caution not to think that because certain defendants pled guilty that that's any evidence whatsoever that there is the existence of a rico conspiracy in this case and the jury was told that they could not consider guilty pleas in themselves and we know that as evidence of the existence as judge griffin had asked judge donald i asked a question about the existence of the enterprise and mr light correctly said that in order for it to be an enterprise and with the rico statute they have to be a common purpose to filey the substantive provisions so the existence different than the catholic church or the lions club for that matter but i don't think you want to compare the devil's disciples to the catholic church i'm not what i am it's the definition of what constitutes an enterprise and what they're not it's sufficient under the log to merely say that the motorcycle club existed that's the point that i'm making with regards to the waiver on the jury instruction on the michigan law not really sure what more we need to do we made a specific request to the court to instruct on the elements which included the fact that there were in the record evidence of the fence provocation and the record supports that so to say that we waived is i don't think correct and when you go back to the record just look at what jeffrey or jethro young said so jeffrey young jethro said that he was in his vehicle and he saw mr smith and mr smith was another vehicle with his that's girlfriend and he got jealous so what did he do you took a dangerous weapon and he got out of his car and he approached jeff smith and smacked his window and what did you do after that you jumped in his car and he went back to his house and what was in his house an arsenal of weapons that of his house with a baseball bat and attacked mr smith in this vehicle and as he was running back he was shot d in the bottom of his i think it was it's like right care and what did he do he got a shotgun and he shot up the van that mr smith then has all of the elements of provocation and some things ok all right we'll take a careful look at the record on that any further questions at this time judge your honor thank you i i think it's interesting that mr light in his argument talks about the st example that i cited during my presentation was prior to any objection  and i would highlight that as being significant for a different reason it was because that was before the government in the end the defense briefs the issue argued to the court and attempted to get  agent plumbing to somewhat tailor his testimony to in fact meet the specific requirements of prima importantly however is when the government talks about the nd instance that has been br and again these instances are prevalent throughout the case let's talk about what the judge said to the jury in his ruling the judge to the jury said after it was objected to by two different lawyers by the defendants the assertion is that it's related in any event it's the impression of the witness it's not a facts assertion it is it's a view gathered from the interviews and from a listening testimony and gathering about evidence that much has been made clear your honor that's max directly against united states so i didn't kill patrick cited by the parties that in order to have personal knowledge that the declarant has to be a participant in the conversation past they have personal knowledge of the facts in their conversation  observe the conversation as it occurs the problem is is they don't meet that threshold and they certainly don't make the other two unlike kilpatrick this testimony was not helpful to the jury under the nd requirement unlike kilpatrick it was just it was clearly disguised as seven o two expert testimony which which therefore ignore which diverted or got past the notice requirement the discovery acknowledge this or drives now keeps procedural reasonable this argument about the district court basing his sentence on the assault case on clearly erroneous facts and so the impact of the courts and here is to those clearly erroneous facts on the rest of mr drop out sentence given that the government didn't address anything about this or drug down if the court doesn't have any questions michael richards in any kind of drug trafficking not word armstrong was referred to by mr light armstrong as the witness who had  contact with michael rich in the brief period of a year year and a half that rich was in the port here on area of or going to alabama armstrong was the witness who says the buy out of what he  no mention of michael richards to mention that michael used methamphetamine with rats so the day before he tested by lin all of a sudden now he has made a couple of eight ball sales which individual purposes and were secret of ronald roberts testimony indicates that very well stolen motorcycle where in alabama was it part of the club no i did it for my own self my own purpose says there was some other individuals that were leaders but you've also heard some thoughts about that too that michael i don't know what his title was or wasn't i'm not sure that you heard any evidence about that and then he makes mention of the without his knowledge without his involvement and with no reasonable foreseeability and that includes post indictment cond that michael richards on bond in alabama and he's held responsible for alleged rep in jail right mr robinson yes your honor real quickly two things with respect to the sentencing claim and the end pants meant for maintaining a drug premises the reason it should not apply it's because just on didn't personally and thirty nine dollars which refused to find a strict liability with respect to a similar enhanced meant and in that case they pointed out it was proper for the district court to take a plain language approach and i'm paraphrasing now rather than relevant conduct approach and its interpretation of the enhancement because the courts must treat the sentencing guidelines as if the stats as if they were stretched statute and follow that clear unambiguous language language of the guidelines itself rather than the commentary or anything else you need to look at that and finally i look at the list of guidelines enhanced mintz and there's a difference between enhancements that start out with if the defendant did something versus if the offense involved and those guidelines and handsome and each each enhanced man is is applied differently and not based upon you know those statements and in this situation it says if the defendant maintained the premises and mr sano certainly did not and we would argue even in relevant context and he shouldn't be held route liable for that enhanced and and with respect to the th the in an argument that we're making what the government has argued today is not what it argued to the court alone that's important because that's the reason the court found that stan had breached the agreement you know the government admits that the letters were now written after or before any of this proffer succession and now they're saying it's only relevant the court it was argued at that in the trial that those letters were evidence that it had breached that pro robinson or had been appointed pursuant to the criminal justice act we appreciate your service to the court and thank you for your representation in this case having no other cases on the