could you could you address whether you think the court's general jury instruction was correct or not i'm i don't i mean was it was a very i think it's the same exact instruction that was used in the gallup case and i don't instructions there's nothing on the verdict form but yet there is if there's a if there's a correct general beyond a reasonable doubt instruction we we normally think that a jury would understand it if it's a proper general doubt no i don't i don't believe that instruction is correct and it is and this is the exactly the type of case that it did happen and and it wasn't challenged i mean was decided after the is this a prior conviction when they when all the cases are being tossed in the same indictment of the same trial we just found guilty they're frightened fiction for count five when when when you just got convicted of count one in this particular trial so that should have been alleged in the indictment and should have been jewish should have been instructed it didn't happen here at sentencing the objection was raised you couldn't be raised or it wasn't raised because i mean had not been decided so one of the rule of literally i would constitutionality that the statute has it's doubtful that the statue's constitution or and make a finding that clearly would be constitutional that the court has a duty to go with the constitutional finding and that basically  thought that they were one of the arguments i've also raised is that there was no actual oral or written finding by the court and on the gall and the case law whenever there's a sentencing in order for this court to review sentencing an issue to determine is it reasonable that's what the standard is and any sensing issue raised on appeal is reasonable there has to be some find by the court whether it be orally on the transcript or written there is none here and then the court just went impose a minimum mandatory sentences never addressed the sense in a relationship it was no written order it was no oral finding your burden as i believe as i understand the law on appeal is determined was this reasonable and it was for the purpose i respectfully submit to ensure that each one of these defense is going to face a ten year minimum mandatory sentence and for leverage at the time of the burglary and it worked most of these people did wind up pleading and they had this g hundred thousand dollars it would not be unreasonable to have security for that type of a drug turns out how do you how do you deal with the argument about your client eagerness to do these deals his willingness in fact his offer to  deals so how do you get around that the law instead simulation is certainly that predisposition is is a factor that the court should consider is not the controlling factor the purpose of sensing the relation is to look at what the government's behavior was and  w their behavior was calculated to take the crime committed by a probably guilty person and make it into a much larger situation which is exactly what happened this is the poster child  really sort of kills you on that issue you're saying that arms sentencing manipulation that is not true it is just the case law on the circuit is that while the court considerate and should consider it it is not controlling what is what the court burton was was not predisposed in perfume on the congress two thousand dollars for thirty minutes work but but he but i don't believe that controls i believe when you look at the overall what happened here and what the government did deals was willing to offer a twelve year deal i guess been up to eighteen or twenty so there's that is that willingness of the government to enter into plea deals that are vastly different than the sense in exposure fry i think the court is going to have to look at and i think the supreme court already years i referenced in order to the questioning of the screen court on the bond case and yates case and johnson case where the justices of a somewhat because he is wife was pregnant he was expecting a child he needed a second job everything started from that moment on once camacho the government's agent found out that  not believe my client that he thought my client was just making up excuses so he wouldn't have to participate in the transaction so i would pause at this moment and say  the at this or should deal with in my view come true was thrown out to the streets without any supervision without any guidance and just said just saying just trying to get as many people a this is this is a holes this is for those who want to know what it is yes actually and that is the reason why the district court reversed itself so when they had actually i i don't know what what place is case of the category of just giving your client an opportunity to to do something illegal what is overbearing  they know he he was in difficult financial circumstances and it's troubling that they would perhaps if somebody who's vulnerable but what what what makes what takes it beyond the threshold of oh  on the other hand salinas was targeted because come natural knew that he was desperate that he was looking for a second job that he was under pressure i mean there is a huge difference between the two and i think approaching an individual a law abiding individual who is going through a vulnerable period i think that's improper but otherwise your honor i mean it's open season on all of us i mean can the government go after me just because they feel like it can the government go after your honor because the don't want to catch a judge but where's the arm twisting yes your client was in a vulnerable position financially where was the if you if you i said it in my brief i mean come on she was very adamant that he had to make put pressure on salinas to get him to do the deal for example for the for the right prior to the or conviction claim only but i would like to address briefly the drug quantity only an issue because that was discussed by my colleague in particular with respect to the jury instructions in this case whether it was adequately express the jury that the where the court expressly instruct the jury not only that there was a presumption of innocence in the case but also that the jury had to find guilt beyond a reasonable doubt at no point in the instructions was the jury told there was any lesser standard of proof that it could apply to any of this any of the dispute factual findings in the case and then after that general instruction is beyond a reasonable doubt the jury was told again that it must find all the only answer excuse me particular elements of the offense beyond a reasonable doubt in the court's instructions as to each of those offenses so for example at page one fifteen one sixteen of the same transcript instructing the jury with respect to the conspiracy charge the court stated for you to find each defendant guilty of a conspiracy you must be convinced the government has proved each of the following things beyond a reasonable doubt and then proceeded to list the core elements first the agreement specify the indictment or not some other agreements existed between at least two people to possess the intent to distribute a controlled substance and the second element that a defendant willfully joined that agreement it's only later that the this report says after you've made that determination you will need to make drug quantity findings so the jury is instructed just beyond a reasonable doubt twice once generally at the beginning of the instructions and then once when each  for example your honor and peter's one twenty two to one twenty three the court after finding the elements of the offense stated if you find the defendant conspired were tempted to possess with intent to distribute a controlled substance you will also be asked to you will also be asked to with respect to this one finding the quantity it had to meet that finding beyond a reasonable doubt and what this court said was duras no way that the jury in instant being instructed repeatedly as to beyond a reasonable doubt somehow applied some lesser standard choose the government uses a crime which allows them to manipulate a lot of things while they there what's really involved is that the drug dealing was really involved is the corruption by the officials child pornography sting operation and that individual said this is not a completed crime this is an attempt and not only is an attempt this is a case that involves an undercover officer there was never even a child involved so how can i be subject to these large mandatory minimum penalties this is cruel unusual punishment it's grossly disproportionate and what this court said in paul was that when you look at the difference between an attempt crime and a completed crime congress has made the determination which is subject to deference that  as i remember the court's opinion poll the court said the defendant's mistake of fact the fact that he he thought he was talking to a child who's really talking to another or officer does not effect or if it does effect has very little if any effect and therefore can't tip furtherance ensuring that offense and so what the government charged was the charges that appeared most directly on point given the conduct that was that issue and this defendant should be held responsible for their culpable for their mental states for what they believe was going on and for what they did especially in mr rivera characters case repeatedly over and over and over and over and over again thinking that these were large drug deals involving significant quantities of cocaine and not only doing that to bring firearms to these transactions knowing that they were required to provide security operational firearms to mr revere repair to this case even offering to obtain weapons for the conspiracy and then when they offered to take him up on that you actually end up providing a gun than obliterated serial number so i do believe in this case th defense and we're talking about sentencing factor manipulation it is just one of multiple factors to consider in the analysis and and that here at least it's the conduct of the government that should be the primary focus of the court inducement in the case but this court has also recognized similar to the entrapment context that someone's predisposition not only is relevant to the analysis but also can even overcome a finding of government impropriety and i would point the court in particular to the case of west of united states which is six thirty one f thirty five seventy to seventy one is a case this court issued in two thousand and eleven where this case nude or this court noted that the defendant's predisposition to commit the charge crimes  secondary consideration in the sensing factor manipulation but that secondary consideration may overcome even a finding of improper motive and in this case your honor even if the court were to find some sort of improper outrageous government conduct which we submit absent the court would still need to confront the fact that mr revere refer to was extraordinarily eager to engage in these crimes not only himself but also to recruit others for the crimes and to bring to bring weapons in the conspiracy and in fact he even actually did bring one weapon and sold it to the purported drug dealers for i believe twelve hundred dollars now maybe i can anticipate your answer but how would you factor into our analysis the despise the sense in exposure the plea deals that the government was prepared to offer which obviously were far less than the sentencing exposure how does how should that factor in the analysis i don't believe that there's any authority on point that would indicate that the government's previous plea offer should factor into a sentencing factor in actually execute it undercover operation and here i think it's important for the courts recognize that the parameters of this operation did not change while mr rivera roberto was participating in the p stayed the same the government didn't try to lure him into can into executing us some sort of additional crime that he hadn't done before or to working with even larger amounts of cocaine to doing something beyond what you can first transaction he did the same thing over and over and over and over again he knew exactly what he was getting into and he did it repeatedly and no one and he was charged with one twenty four c offenses as a result of that conduct congress has made the determination that when someone uses a gun in relation to or in furtherance of a drug trafficking crime that's a very serious offense and when someone is a recidivist it's even more serious and we cited in our brief in this case numerous opinions from numerous circuits in which courts have held that that  but the mandatory consecutive consequences come into play even though we're talking about one indictment and convictions at all to place at the same time yes your honor that is our position and we also believe it is the law that where there are separate instances even though they're charged in the same indictment right or someone brings a gun to a separate transaction in this case each time with separate separate number of individuals or excuse me  is possessing a firearm in furtherance of an attempt to possess cocaine in each one of those transactions is a separate attempt to possess with intent to distribute a large quantity of co and your honour's i i also believe there was a brief discussion as to the the reasons why the government selected this particular quantity of drugs in this case and something that my colleague said in his argument was that well the government had testimony at trial and there was no reason for this other than the mandatory minimum and he also mentioned well there there was some reason because the government believed this was necessary to make the transaction seem realistic  i do think that there's emphasizing the latter point there was direct testimony in the record by an f b i agent that this particular quantity of drugs was selected because this transaction needed to look believable the primary factor he testified in developing an undercover operation is to develop a believable scenario because otherwise the undercover operation won't work and so what the f b i did this case was they used a quantity of drugs that would be sufficient to merit the kind of security the kind of operation that took place the number of individuals involved that would merit having people go out and try to recruit other people and that's direct record evidence to that point given the fact that the appellant has the burden of producing by a preponderance of the evidence a key sentencing factor manipulation the presence of affirmative evidence in the this very quickly i gather to the extent that we may find that the sentence is extraordinary  again knowing exactly what would be involved he was a very eager participant he recruited others he sold a firearm to the conspirators this was not someone who was hesitant or not sure uncertain about his conduct he brought firearms each of these transactions knowing that he was providing but i couldn't find the citation i apologize for that his attorney did in fact advise the justice department department attorneys of the fact that he did wish to plead guilty to the twelve year offer but that was after the offer was off the table and that was it he was ninety one zero four but to the larger point your  r brought up the attorney's testimony at the latter hearing which the district court found credible was that he in fact had advised his client fully as to the potential consequences of not pleading guilty he had told her about the consecutive  element which is what is the what was the government and its motive and what how did the government behave when you look at the plea offer as they seem so disproportionate to the amount of time that was conceivably possible for these defendants so should we look at that so i mean i think that we're trying to figure out if if we should look at the offers relative to whether the government itself  it's relevant to this court's case law because of this court a set is what matters is what the government do in designing the operation like this is why we've been talking about how it's analogous to entrapment and did the government over beer someone's will and cause them to engage an offense that they wouldn't otherwise to gauge and that's the focus of a sentencing factor manipulation claim that is did the government manipulate the operation itself to cause additional crimes that wouldn't have otherwise occurred not did the government offer a plea deal after the operation had concluded and then decided to go forward with the trial if it was duly convicted i think that in this case also it bears mentioning that the government offered those plea deals at twelve years contingent upon the defendant accepting responsibility first crimes which he didn't  and that that is a factor that's also relevant determining what is an appropriate sentence in this case and i don't believe that that's a factor that this court is considered it's prior syncing factor manipulation cases the focus is on how was the operation designed what was the his vulnerability the predator revealed in just a chance conversation chance conversation with a with a colleague which should not allow the government to then go out of its way to exploit that vulnerability this is not somehow out it goes beyond just of a willingness to commit the crime it's a willingness born of a certain desperation among life's circumstances there is a that has the feeling not enough that someone has financial difficulties for that there's some sort of financial incentive to establish a basis for an entrapment instruction rather what matters is did the government unfairly exploit that financial vulnerability and the evidence that m received several phone calls from the middleman and the middleman on several occasions to try to get him to dissipate and several times he declined in this court said it doesn't what matters is not necessarily the number of times that someone declines for  they're asked to participate in this case he was only declined once and there was no undue pressure placed on him in any point to participate in fact you know that's something that should be the evil who really was why should that be the jury to decide whether he was about or just saying that for the record because it's not enough as this court has said your honor for the defendant to have declined one time based on a scheduling issue and then readily except leader about ten days later do the same thing that he first declined to do what matters in terms of whether an entrapment instruction is justified is whether a reasonable jury could find based on record evidence and in fact someone was improperly induced to commit the crime and lack predisposition to commit a crime transcripts what you see over and over again is these middlemen reporting to the government agent camacho that they're not pressuring and camacho in fact instructing the middlemen well don't twist his arm you know this is only for people who understand what it is this isn't for people who don't know what's going on and then in fact mr camacho even at one point tells mystery on did you tell him what the devices are and rian responds yes i did the transcript of the transaction itself shows again mystery on the middle man saying over and over again conceded in his second property the district court on this issue on entrapment that he had no evidence by which he could attribute that claim regarding it being a diamond related transaction to a government agent so we can see that he or we i'm sorry we allege that he has conceded that point the district court he did not put forth any evidence by which a reasonable jury could conclude that even if the middleman had told him it was a diamond transaction that was something the government induced the middle man to do which disproves the idea that he didn't understand what was going on here hartman in fact over and over again as i was just saying mystery and says i told him what was going on the reason why he's so surprise is that he didn't know that you camacho were involved because apparently mr camacho was an honest or perhaps i can say the government the trouble of that letter is the government if you look at the government's brief and this appeal thirteen twenty seventeen pages sixty seven to sixty eight that's the list of all these cases that i believe counsel is talking bad crimes there robberies kidnappings on robberies major drug deals there's even a terrorist case involving attempts to wage war against the united states with a person get a life sentence none of these cases a stink is all real case and that's the distinction they argue this you know this that's when i twenty what they did was ok there's a there's a complete difference between the cases they say although they provide the court in terms of the proportionality review under the eighth amendment one of the factors is supposed to review cases in this new street and the cases nationwide i argued it was so many cases in the district i didn't feel there was a nationwide analysis necessary i guess i got lazy the government did for me because they reveal a review of there are not reviews of state cases these are all real cases and i respectfully submit you cannot compare these type of cases that involve true crimes on the facts i do not raise the jury drug issue in this thirteen seventeen case i raised it in the other my argument is basically all together the sense of manipulation argument applies disproportionally argument applies and then on the specific cases the jury instructions are forty and one twenty four see particularly on the second case and in the first case and twenty four c and us case my client was approach because he was vulnerable because out of a off the cuff conversation with callie he told he's called he asked for help in getting a second case i mean it is absolutely unfair and i think the founding fathers would have a heart attack of so you know we're not dealing with laypeople here these are police officers yes or who are entrusted with certain very important responsibilities and if the government is trying to determine which police officers cannot be trusted to carry out their response with which police officers are willing to abet the very criminal activity that they're supposed to prevent so hard to find fault for the government to work trying to maybe go a little beyond the norm and trying to weed out police officers who are easily lured into criminal activity that's a that's a that's a pretty important thing to find out well it is but salinas was an easily lurd and that's one thing and second a so that tells you what they thought of selena and he wasn't a man who was who was involved with drugs thank you ro