an additional two minutes so i will be taking up twelve minutes of the court's time i would ask to reserve four minutes for replied ok you keep track of time then that means as soon as you used your down more or less to your target area ok ok of a boat captain or an operator who refuses to obey an order by a federal law enforcement officer to heave to that vessel and it applies an enhanced penalty if that results in a death there is no requirement for knowledge for that enhancement and that makes sense for the operator or the driver of the vehicle because the open waters can be inherently dangerous  and risky behavior on that water could result in serious consequences including death so it doesn't matter that the boat operator knows that his actions resulted in someone's death because he should  that death could be a result from those reckless actions and i would suggest that's much like the drug dealer and the government points to the case of united states versus houston that if someone is dealing in dangerous what i'm arguing it because it was not answering your question directly what i'm trying to argue is that there is no knowledge requirement for the principle actor and that makes sense for the reasons that i was i was arguing is that the inherent risk the danger of those actions however for an accomplice an accessory after the fact that knowledge requirements should in fact apply and so you're saying that he should be your client shouldn't be prosecuted for the accessory after the fact for the failure to he because the government didn't prove that he had knowledge of the death knell of it or that your argument but it's not really an element it's an enhanced moment it seems like it's an enhanced under the statute but i guess my question is does it matter in the end because that particular offense the sentence that he got was grouped with the assault it was a lesser offense level and it was grouped with the assault so does it really affect in any way the sentence if that's what you're arguing on this on behalf are you just saying he should never been convicted of that perfectly well i understand the court's point on the grouping that individual can't itself it does make a big difference and because of that if you look at it without that enhancement and if excuse me if i just i mean look at it without that enhancement he gets a lesser sentence but that's not what drove his sentence it was the assault right we end up only with an office level for that can out of twenty total offsets level of twenty however i guess i would point out that my argument is also that for the same mens rea issue resulting and if i just may finish on that one point because for the accomplice like for the drug dealer you know anyone who assists the drug dealer the wife the girlfriend the brother or what have you to hide at their house afterwards  they shouldn't be held accountable for the death that resulted from from the drug dealer and likewise for mr bell tran he should not be held accountable for the resulting in death however if i then would address the court's question as it goes to the aggravated assault charges and i apologize i've left my notes here for one moment subsection three to require proof beyond a reasonable doubt the defendant's men were mens rea and that's mr belt trends was the specific purpose or design to hinder or prevent another's apprehension rather than merely being incidental there are two in this case mr belt and engaged in joint criminal activity and that was to drive upon got or be a passenger  punk from mexico up to the united states to engage in the importation of marijuana as the government notes in its briefing that driving having that criminal offense takes two people one person excuse me to drive the boat up and back all by himself and it would require the the assistance of two people and so mr belcher and when he got on that boat was should be criminally liable for what he intended to do and all of my arguments on all of these points is that there was a lack of evidence regarding his knowledge and regarding his intent once he got on that boat he's now trapped quite frankly and this is a slightly unusual case from from others and that's why i equated it to the getaway car driver for robberies because mr belcher ran there was nothing about when he got on the boat in mexico that would have not he's not intending i would argue that there was no evidence that he was attending intending to assist mr me he'll leyva to avoid mr makiya labors capture or prosecution mr bel tran voluntarily persisted hated in the criminal enterprise of importing narcotics into the united states and tried to escape from that action however he was not an accessory after the fact this century after the factory i would argue your honour's that this is again akin to the bank robbery case where the person gets in the car he's the driver he takes the bank robbers who you know may or may not have g to the location he sits in the waiting the a call any assist to leave in those situations and less he knows that someone has a gun on them and intends to use that against the individuals in the bank he's not held criminally culpable as an accomplice after the fact if someone in fact did have a gun on them unbeknownst to him and shoot someone inside the bank i would submit that mr beltran is in that same kind of situation  knowingly gauged in you know bringing drugs up to the united states and he's going to have to stay on that boat to get back to complete that criminal activity he's going to have to stay on the boat to get back to mexico so this is all one long criminal murder or in tone for manslaughter i'm assuming that the court's seen the videotape and watch the videotape are of the defense position at the time of trial and remains the facts that were presented during the course of the trial that would suggest that in fact he did not deliberately hit the zodiac midship he started off straight ports but there was a number of shots there had been fired from the heat signatures as you can see from the c one thirty surveillance video at some point mr mcneill ava's no longer recognizes the heat signature he's lessons and not to the to the floor of the of the pongo the killing of chief petty officer horne occurs as the two boats after they've collided start to rotate off one the boat drives away from the locate away from the point of collision and south towards sickle in essence the difference between second degree murder and of involuntary manslaughter is a question of whether or not a intentionally rammed the boat the jury obviously looking at these looking at the evidence in the case decided that he intentionally rammed the boat the defen appealed that conviction night i completely understand the standard of overview our our our position today is that the jury just made a mistake that there if you consider all the evidence in granted you do it in the light favorable to the prosecution but the reasonable interpretation a reasonable inference from the evidence would be that mr may heal even did not intentionally ram the zodiac that he did not intentionally act in a way to kill an officer that the death of the officer actually occurred as those are the two vessels rather start to slowly disengage after the collision there are some additional you know facts that seem pretty clear from the trial because the death of the officer petty officer takes place as the boats are separating yes that is neither here nor there with the question is whether he intentionally rammed his o d i in the first place your honor i completely agree i completely agree although you know i think again the question of the intentional ramming versus quite frankly a loss of control and this is all happening within seconds and as the tuvok boats are rushing towards one another and to assist you know the zodiac comes this planing comes off the plane settles and then moves again forward as the pond is excel orating and as the pongo accelerates at full throttle that the bow goes way up which causes the pilot to lose some some visual sighting of what's directly in front of them and shots are fired and my body doesn't know i just don't you've done a good job with a tough case i did have a question for you about whether there was any argument that count one and four were ultimately i think it probably has no effect whatsoever here i'm just wondering if there was any argument below of that as to why count four can stand when he's already been convicted of count one your honor i don't recall i was i don't recall making that argument at sentencing our point when we were asking for rule twenty nine rule thirty three was too for the court to look at the evidence mr me he'll even testified we had defense reconstruction expert testify obviously all there was significant testimony from the from the surviving officers coast guard officers the young men who were on the zodiac and we were asking the court to simply do what we're asking this court again is to look at this evidence obviously that the standard review is pretty clear but to look at the evidence and say that a reasonable income to a conclusion that a reason interpretation is that mr may he'll leave a did not intend to ram the boat that he was he did not act with implied malice and that  the government made much of the intent to avoid apprehension in its argument before before the jury and also in its briefing before this court and i want to just use that for a moment to avoid apprehension one would think it's reasonable to infer that you would not intentionally then ram a boat become lodged on the boat the mean zodiac and now in essence create a roadblock to your own escape route so to ram the boat as not is not consistent with with an absolute intention to so this is that's the case quite a bit apart from many of the cases that were cited by the defense regarding involuntary manslaughter for example needed of all individuals are fleeing from the police that's correct but apart from violating traffic laws there was nothing in there in the in their conduct that indicated recklessness that would do such as an extreme degree that quote in court any reasonable person sees me the the risk of death would make itself appeared any reasonable person we have here is more akin to someone driving hitting a pedestrian or someone driving and intentionally veering toward a police car trying to stop work or maybe even more aptly toward a motorcycle because we're talking about a boat that was nearly twice the size of the coast guard small boat and much more durable much more heavy example that it started off straight and you're right the government's expert and i think that the the video viewed fairly indicates that the left hand turn was almost immediate contemp with throttling up of the pongo we also presented evidence that the pangas throttle had to be essentially pushed to the maximum from the very beginning the throttling up and the left turn toward the oncoming costarred small boat together can hardly be understood other than by an attempt to drive at them now again this argument was brought up in the trial court that the defense argument  control at every relevant point up until that collision the collision may have knocked him jostled him as it certainly did with the people in the small boat but when he is seen jostled away from the helm certainly appears to be after the impact has occurred you know i should know the answer to this but i do not what was the steering design on the panga boat did it was to be done if the power is going to accelerate there has to be pushing forward on the throttle which is separate from the wheel act and then there has to be a turning of the wheel as distinct from if you're just on the outboard you can accomplish both things by twisting of the handle and directing the handle so in order to accelerate and to turn in to put zodiac whoever did that had to be able to do two things more or less simultaneously with two different hams that's correct and not only that but  its maximum thirty capacity to the left which is two and a half or route to full rotations plus another half rotation to the left so as we argue it's hard to understand that except  escape face like just for you to comment or respond to that and see if you agree with the description that mr beltran was still trying to escape from the authorities up until the time of his why he was trying to escape but our argument was that is that the offense the initial offense which was the first failure to heave to the failure to the small boats commands and the dean cain it seems to be reliant on the fact that the bank robbery has the taking element and so that taking away of whatever property was obtained during the bank robbery is part of is that wasn't what was argued here first of all it wasn't brought up by either the defense or the prosecution and secondly i i would i would submit that whatever  and temporally bout three hours away from the conduct that was presented at trial that defendant beltran committed that we relied upon to show that he was assisting to find the makiya in his escape pongo occurred it was presented either by the testimony of the helicopter crew who were able to see him doing those things the video which the jury saw with their own eyes or members of the coast guard respons who arrived on scene but again that was about three hours after the offense occurred so it's our claim that it would be a sort of difficult perhaps absurd reading of the statute to claim th had continued throughout that escape phase when the boat that he's charged with failing to comply with the orders of had long ago left the scene disabled and they were well on the way back to plan to try to assist with the medical treatment of the chief horn and three hours later that offense is still ongoing or over your honor i'd like to suggest that the government should have charged him with aiding and abetting because the offense was ongoing at the time of the second encounter so what the defense's argument is that government charge of the case wrong we never maximum sentence and so since we're looking at a wave sufficiency claim it terminations whether reversal requires a manifest injustice on these facts w counsel yes and no it wasn't raised in the trial court but and i'm trying to remember because we did have quite a lot of deliberations on how to charge the cases you could i'm fairly certain and we looked into that we were trying to determine at the indictment stage how accurately we could prove that they came from the defendants pongo turns out after some time to research in some way better we were able to reasonable for sea ability of certain things based on a joint undertaking activity including i guess the physical contact enhancement which i think was three to relieve the more distant air aircraft that was pursuing them that helicopter with them up with a spotlight response boat activated law enforcement might and issue commands of are allowed here for them stop he didn't stop  at thirty five forty mph about thirty five knots his resistance was not only in fabric and creating danger but he had already demonstrated anyone who was in the vicinity of that ramming that he was willing to go to  extreme lengths to avoid getting caught including by ramming the boat which any reasonable person would understand cos likely because physical injury wasn't forseeable that after three times the coast guard small boat or excuse me response but was able to come along side issue orders with guns drawn defend it be here continue to resist and during that time we have to know defend a beltran is continuing to assist even six minutes from about eleven miles or maybe five six miles exact numbers i don't remember at least six minutes after the first coast guard boat pulls alongside guns drawn ordering them spanish and english to stop when it beltran continues to manipulate the hoses he takes something from the front of me here he's hitting he's making holes in them in a fuel tank trying to get a into it so that fuel will flow his assistance is continuing long after the point where we're definitely he has conduct shows that he's willing to go to great lengths to resist and when the coast guard boat did make the sort of kinetic forseeable to the defendant trial court found that that's not an unreasonable finding based on the facts for an accessory we've explained why in our briefing we think that that's a illogical result because it doesn't make sense for the principal not to have to know that that's resulted in death and it shouldn't make it doesn't make any more sense for the accessory to have to know particularly in light of the type of situations in which a failure to heave to causing death would would would come up which is a boat leaving the s of the officers furthermore i think the case law interpretating aggravating factors and that's what this is an aggravating factor the clear statutory there is have been charged as an accessory where a sensing factor is found that the principal does not need to know or intend or to found that the sensing factor does not need to be known by the made more serious by the quantity and type of drug that he intended to distribute so we know that that type of one does not have to be known to the principal and the court there held that it does not indeed had to be known by the accessory either for consequence of accidental conduct that's not allowed it is quite usual to oppose criminal conduct for unintended consequences us first floors garcia again cited in our brief stated an individual aiding and abetting a person who the entry of a person who was excludable because he was a felon did not need to know the person had that felon status and the cour said provided the defendant recognizes he was he is doing something culpable in other words he is assisting the crime he need not be aware of the particular circumstances that result in greater punishment case and the government has pointed to mr bell tran will throw hours afterwards that he's still manning these fuel lines and what have you all of that is correct however what was also happening was this was a concerted effort by a number of members of the coast guard so even though one boat after the collision had gone off to try to save the coast guard officer for there were the planes there was the other coast guard boat out there they were working into can in conjunction with each other to all kind of try to locate because they had the know the radar identifying the pong to continue to chase after it and it took them some time before they were able to catch up to the pongo so this was one continuing criminal offense and that is why it's so important of from appellants position that the office for accessory after the fact has the element that it has to be with a specific purpose or designed to hinder or prevent the other person's after hitchen and in this case there's no doubt the evidence showed very clearly that mr beltran was trying to escape he was trying to get away from his own criminal conduct however there was no additional evidence to show that he was acting with the specific intent to assist defend those very resists excuse me very resistive behavior there was no indication in the beginning that he was going to behave that way was all when everything happened and he certainly has room in the coast guard boat that it continues to