your honour's this case represents a classic round peg in a square hole one time mr raines transported to on documenting people from a safe house within the united states a few miles within the united states to her home and there she cared for them for a few days the government however not content with the transportation and harboring correct and both fail beginning with aiding and abetting it's our position that this court doesn't have to go any further than judge reinhart decision in lopez to conclude that the aiding and abetting conviction fails  it's undisputed here that the two undocumented people to gallop and were at a safe house within the united states before ms rains reached them therefore under lopez there there can be no dispute that the brings to offense was complete at that point when they arrived at the first safe how correct that this court's clearly established law miss raines there's no evidence that she acted extraterritorial thus just like the defendant in lopez and i'll quote the transportation came only after the aliens had been dropped off in the united states and therefore cannot serve as the basis for sustaining a conviction for aiding and abetting a brings to  fense well the government says but there were calls there were calls she called hero the main smuggler well in this case the calls add nothing first of all they didn't connect second of all they weren't extraterritor also also say other things don't they that you have to say that that she met with the smugglers weeks before that you agreed to the use of her ranch that they she established a code words that she agreed to take in a certain number of aliens arabia even beyond these two wives perhaps but speculation is is not evidence and those things make her guilty of harboring they make her guilty of transportation but they don't make her guilty of the brings to offense and we have  that that quote from lopez here that says the court needs to be careful to maintain the distinction between the offenses and the actual quote is a specification of the category of the aiders and abettors must take into account and attempt to avoid redundancy with the separate offenses congress created at bottom whether the court looks to aiding and abetting or conspiracy if the government is correct that merely agreeing to transport and harbor undocumented people at a safe house within the united states is enough to establish guilt as a principle for a brings to offense the court has therefore would destroy the distinction between those offenses there is no doubt the government proved miss raines was guilty of transportation the government proved miss raines was guilty of harboring we're here because they took a step too far and that's our argument i'm happy to answer any what about the pinkerton they talk about pinkerton so under the pinkerton theory the government's essential response is well we don't have to prove the name of the person who did that and yes that's true but they have to prove one of the well there's a couple of reasons first as your honor just noted really the scope of the conspiracy she agreed to was to harbor and transport people she's not part of a brings to it's totally irrelevant to her role second the government failed to show that any of the people it tied to miss raines any of her coconspirators were in fact guilty of the brings to a facts now we can certainly speculate that maybe kiro and his wife had some connection but there was no evidence that they did for example i mean there's no evidence they had communications with the smugglers and in mexico or the gal the lands in mexico both there's no evidence as to either of those facts there was no evidence that they communicated with were aided the smugglers in mexico as as your honor just noted there was no evidence that they spoke with the galvin and certainly they didn't show up at the fence that day there was also no evidence about the man at the initial safe house not somebody brought the gal united states but the government is missing a critical link there is no link between whoever that person was and miss raines and again that critical link is necessary because if it's not there what you have is guilt essential a defacto guilt if you hit if you transport if you harbor you're suddenly guilty it when you do it within san diego county your own most are certainly going to be guilty of  brings to offense that carries the mandatory minimum because those offenses they tend to follow i mean we know that somebody has brought to them their transported and harbored but they're separate offenses congress has created the distinction and it has done so with different penalties all we're asking for is for this court to maintain that distinction thank you i said share the rest here some of your time with you know he's go sailor he really was in the next few days it really wasn't there were a number of problems a rural property and or a number some environmental issues and some other issues so when i spoke to the customs agent involved in that a few months ago it's still no solved the first issue of like to address obviously should we be successful on the arguments of mr bersin and just brought to the attention of the court that in and of itself is a reason to can't couldn't the government get forfeiture just on the basis of the other convictions they could they could the problem is the district court specifically referenced the minimum mandatory sentence imposed in this case at page three zero seven of the of the record and also emphasize that we have seven counts where miss raines was found to have conspired with others to bring the aliens in for financial gain and that's at page six sixty five of the record so if those convictions are set aside the district court may well reconsider whether the four parts are as excessive in this case but basically it would you're saying that if those convictions that it's not the forfeiture is necessarily reduced but the because the district judge relied on things that would no longer be in the picture the district judge should have the opportunity to take another look at exactly number two is the fact of this record apply the wrong standard in this case what the district court was required to do as referenced both in bodge occasion of the northwest thurman case to supply what we call  factors the nature and extent so on and so forth on what the district court did and there was compounded here because not only did it not apply those four factors but applied the wrong factors looking at sentencing factors at punishment and  as a set forth in extensively in the briefs and it's clear through the fixing case and the additional case that we cited in the briefs and seen as for is that where the court applies the wrong standards not by their rights as it has to be remanded going to the four elements itself i think that they have been dressed pretty distinctly in the briefs but it was clear that there was the nature and extent of evolvement the property this was a prop she lived at for many many years and it was involved in one week of conduct here and i won't go through all the things that she didn't do in this case she just there's no evidence in the record at all that she that there was any other use of the property that is correct there is no there was no evidence just this particular incident this was a one time shot the activities were not related to any other illegal activity i mean that's clear from the record as well  when we get to the third factor the other penalties as a huge problem in this case is what the court did was centrally say well the maximum fine is two hundred fifty thousand dollars that's the end of the inquiry well that wasn't you concerned about i think there's a few get which case where there's a statement that if the forfeit and that's the northwestern case and there is every other case i could find from the circuit has said the same thing that he did that it is it doesn't appear that he took that into concern at all in the guideline range was you know three to thirty thousand dollars here we have a forfeiture six times that and i went to the effort as reflected in the footnote in the reply brief to look at every alien smuggling case for the that year in the two previous years in san diego there were seven hundred fifteen defendants five hundred fifty five cases there were a total of four fines and all those cases the largest fine was twenty five hundred the total fines i think were about five thousand and another words this forfeiture was eighty times the largest find that had ever been imposed in those three years and we're talking about cases where they're putting people in hidden compartments in vehicles in the engine compartment the credible danger to them and so on and it was thirty three times before all the confines combined and so i think and then finally  you know before then we are forced term cases what we call the little canyon road case which was a nice circuit case that came after the austin case that said well what are the standards here and one of the factors they looked at was the hardship to the fish and the and we do they're somewhat all fitting because they're primarily designed or primarily i guess used in cases where it's actual cash maybe drug proceeds or otherwise that are going in or out of the country and so it is a little bit ill fitting but i still think those factors demonstrate t so two percent that pretty significant it is it is different yes and i don't want to minimize or or try to tell this court that this is not a significant forfeiture it is but but two responses to your concern there first is that we should look at the guidelines but that their second this court has also upheld for features that were much higher even over the guidelines i would point primarily to us the maquis there is the maximum guideline fine was seventy five thousand on the forfeiture was nearly ten times that seven hundred twenty nine thousand so it's not unprecedented to have a significant break over that and it comes down to the facts and here this was a one time incident in the sense that there were only these two aliens that were at the ranch over miss this one incident it was an open ended education that but there is no evidence as i asked that scales of the right no evidence that was used for any other wrong doing correct correct correct it was it was an agreement to do so but the actual incident was this this time and in terms of some of those other factors for example that whether it was related to other illegal activities the nature extent of the crime this wasn't like an budget kaji and where it was legitimate money going for a legitimate purpose that simply wasn't reported as the supreme court found that was minimal culpability essentially is not something the government should be particularly interested in here we have an international smuggling conspiracy and an open and open ended invitation to continue to use her ranch when i was to what did she do before these people who were in the united states to make her guilty of aiding and abetting bringing them into the united states to primary things first is she met with  we can use the ranch she said a code words and she set her price which was one hundred fifty per alien how many at a time how long she would be willing to help them she said all of that up then she also wants the aliens were across transported went to pick them up so there was at least some coordination had a time to know where to go and when to go pick up the aliens brought them back to her house and then house and therefore believe that five days but didn't didn't have in all the other cases that we've this court  has found sufficient evidence in lopez hernandez or lyon no noriega per has shown much more evidence of the involvement in the bringing into the united states and a connection between this defendant's activities and the cross border transportation but i think to answer that ultimately the question comes down to is this case more like lopez or more like nor was more evidence in the sense that it was a it was a long going on going long term smuggling offense and in that case the defendant rented two separate houses so he didn't have as far as the case shows any interaction with that one but knew that they were using it as a load house and that was still sufficient also noreiga pres some of those aliens were dropped off at a different house first then ultimately came to where i could present as house to be harbored and that was still found to be sufficient also here so miss rain the size the connections that i already mentioned to the starting up ahead of time they're going to pick them up which reveals coordination she wasn't really passive ones they got there she was actively communicating with this that but that's not the often the office is bringing them into the country of course but what i i guess i was more of the forfeiture then and that she's she's setting up the point of making she's trying to tell the who turns out being the undercover agent when the checkpoints are down she she's part of this ongoing longer term conspiracy once they're here and once the river ranch yes but the point is that that indicates she's not merely receiving aliens and then they go on she's she's part of this group to make sure they get across and get to a little bit of any idea who the smuggler was in terms of the actual person coming across the fence brought them over now did she know the names of the people who were being brought over not before they got there now before they got where to her to her when she picked them up but she did courtenay again with the aspen dollars and they're the ones who are putting all of this and motion the so it is your argument that the simple fact not that alone so our argument is that's not what agreed and the arguments the council were making about how this would essentially destroy the distinction between the offenses is exactly the argument that the dissent made  it's we have to look at her actions beforehand let you back your back to the fact that she was willing to allow her house to be used in there in some way i guess encouraged or you direct it prompted and it doesn't need to be got the cup the couple to then make arrangements to bring it brother and sister into the united states that sounds just like look it's not because then it doesn't need to be a but for cause in other words perfect place for smuggling and before there's a point she needs only to encourage them to do so to do what to bring the bring to that well is there evidence that she participated in courage ing anybody to bring aliens into the united states or only that she encouraged people to once they were here move them from point a to her ranch she encouraged them to bring them across because of the use of her ranch or ranch besides being perfect in terms of location or in terms of but pinkerton is cited in the indictment or the information i guess it is in the two substantive counts not in the conspiracy count correct in does that automatically turn those two counts into conspiracies in the case that there is a conspiracy and indicates to whom through well that so the jury was instructed about conspiracy and the jury was told that if you find that the defendant conspired with someone you find essentially if you find that she was conspiring that would be to bring across that would be sufficient and why didn't the government say to the judge we need to name a particular person she was conspiring to was it because you didn't have any idea who you thought she was conspiring with so the jury was instructed if you find that she was conspiring with someone but i'm not going to tell you who in this instruction right then you can turn these substantive counts into a conspiracy and i leave it up to the government to explain all this to you i'm not going to they're going to give your theory i'm not going tell you anything about the law i would disagree with that that last section about not only about the law and that the jury was instructed what conspiracy is what it means what we have to prove up two and three but i would have to double check the record so under pinkerton you can turn substantive constant to conspiracies you can show that the defendant is liable for the substantive account count if he conspired with others ok the government pointed to two things it said the meeting you asked what's the evidence beyond lopez and it said well the conversation the meeting with mrs been told beforehand about the transportation harboring and the transportation after those are the two factors so the first one is dealt with in saying in fact and i know your honor was on that panel and saying hold preparatory calls involving planning for the transfer transporting of an illegal alien within the united states are not enough to establish intent to aid a brings to offense period preparatory planning that doesn't cut it now what's the transportation after plainly that can't cut it because the offense has come to an end that's the black letter law that follows after lopez in at miss raines conduct wasn't it's not a difference in degree it's a difference in kind i think in the brief we lay out that mr noriega paradis was a professional deeply involved with hundreds if not thousands of aliens united states before that finally in direct question your honor pinkerton cannot turn a substantive offense into a conspiracy it's not it can't transform it magically it's not a theory of conspiracy it's a theory of substantive liability so if you put pinkerton in you can't then say there's a conspiracy in there it doesn't follow so the answer to your question is no thank you