good morning your honor my name is jeff brandt on half of on behalf of my memory now our client is guilty of buying and selling to grab kilograms of cocaine and he bought distribute your my nightmare your honor but you're correct that's another problem on page one sixty seven of the excerpt of record he testifies that he had an understanding and agreement with juan carlos trial and i make a distinction between a trial and sentencing that marino has any connection to alaska alaskan based conspiracy he did take the stand and admit to an agreement but it's instructive that the agreement involved carlos and that's your idea did merino intend to further the goals of the conspiracy that extended to distribute cocaine in alaska marino never saw our heiress mehndi who's our person flying from alaska to los angeles he didn't know who she was he saw her briefly everest mehndi didn't mention merinos name at all didn't mention his name was told specifically not to deal with them this is more than saying nobody in the alaska conspiracy sat down with ray now and and you know th typical argument he had in sit down with anybody and make a deal to have a conspiracy this is much more than that this is a conspiracy and alaskans conspiracy saying whatever you do don't deal with the local  he looks for more he found nothing he looks for more he found nothing a last second last ditch effort he breaks the rules does what the conspiracy is not supposed to do kills the conspiracy by going and contacting marino kills the air of the alaskan conspiracy and although we dispute that there is there any conspiracy possibly creates another agreement to get two kil the the testimony at trial is black and white different from the testimony at sentencing the testimony at trial is either not about moreno at all best the government approved a conspiracy involving three people and that merinos intent to distribute was not the same conspiracy as the alaskan conspiracy that it would end up there that if the government's proved a conspiracy and has not proved a conspiracy that involves merino in the alaskan party and therefore then you want to last it would be improper we asked the court to look at that trial evidence that it's either has nothing to do with moreno or if it does it's exactly what marino as always admitted he did and that is buy and sell two kil s another piece of evidence here is meant he was incredibly put them on a meticulous she had names she had dates you had addresses and no mention of merino whatsoever another point how disturbing it is that at the disparity of evidence between the trial and sentencing it's all about two kilograms of cocaine at trial and then it's it's an argument that his right to jury trial and his due process rights have been violated because it's a game of hide the ball i don't know that it's an apprentice or a lot of cases because i think the government even gets around a pretty and wants by doing the following taking all of its best evidence it's strong evidence it's clear evidence evidence by the way that's strong and clear because marino admits it that's why it's strong and clear and takes it to judge at sentencing and says look at all this other stuff and in essence the government saying all we have to do is prove five hundred one grams marino was involved with five hundred one grams and if we prove that we can knock him over the head with all this other stuff that's weak we it it's it's an old kentucky lawyers argument i'm sorry to say and that is it's wrong it's due process to if the government can do this what does that right to jury trial mean how does that mean anything anymore and i understand the watch case as you can be acquitted of conduct and still some of that can be used to sentence you but this is this is a way to even get around that problem with don't show the evidence at all don't bother showing the evidence to the jury we don't think the jury's going to like it or go for it let's just keep it from the jury altogether let's put people away for a long long time based upon weak evidence by taking getting somebody to admit something telling the jury look they admit it and then punish them on all kinds of other material that's not strong enough to take the jury that's not a due process violation i don't know what it is i wish i had a case that said it was that jury trial problem enough of the evidence was shown to the jury for the jury to even reject that instead we're arguing that the jury's role has been in total you sort we can't convince a jury of this so we might as well use the other tools in our arsenal and that is the sentencing guidelines to punish someone and i don't have the cases but i've got the gun that says that's that's not right and we ask the co to find a similarly regarding acceptance of responsibility there's no doubt that there are some factors that cut strongly against it but we do think believe that district court i found that incorrectly that there were no constitutional implications when finding that acceptance of responsibility did not apply he's always admitted responsibility for two kilograms of cocaine and that's what went to trial he ended up giving to mr moreno did not exceed the sentence that was appropriate for that climbing and in fact it didn't even look to a conspiracy theory to expand the potential it's been reasonably close in time in this case grand quantity dealings and cocaine exactly the same crime regular happened again and again over the course of of of the pr alaska but it was it was a relatively small conspiracy but that does not affect the relevant conduct that the district court could properly take into account and determining an appropriate sentence here contemporaneous notes and and it seems to me that a fair view of the record there simply is no question that that that was that exactly what mr marino had done and what he had admitted to doing when when he was talking about the issue of weapons of sponsible he was the fact that that's right i had chosen to go to trial again that in his view the reason why mr chosen to go to trial again was because the case was ten years old because witnesses had disappeared because memories could be counted on for sale and he thought that the government probably wouldn't be able to make its case and turned out to be wrong and the jury did find him guilty but but i think that is the issue that the district judge focused on i don't think that that means that this court can't take into account what factors might logically go into whether or not the particular two kilograms of cocaine and admitted that he did it knowing that the person to whom he was going to sell intended to resell it for distribution that in fact he was drawn and he was drawn into this conspiracy cocaine to a distribution it was ultimately going to take place in montana and he made exactly the same argument i had no idea it was going to montana i was in florida this court specifically found that that not only didn't make no difference because the conspiracy charge as the conspiracy was charged here was that the conspiracy was to take place in montana and elsewhere but that that by the very fact of the quantity of the cocaine and the nature of the nationwide distribution of cocaine that well it's it's difficult to pull back and say this is the point at which the conspiracy would end if you were talking about relatively small amounts so that it was not necessarily sustainable that it would be distributed if you were talking about someone who had no prior dealings with any of the of the members of the conspiracy as mr marino conceded that he dealt drugs with informants director very very in the past and that he knew court that that case is not relevant to the situation that case was exploring the question of whether there was any conspiracy at all it involved a defendant who was growing marijuana at home and would occasionally distribute marijuana and this court subsequently has held that in a case like this one where there is proof of the stablished conspiracy when it simply has no relevance at all and that in this situation the question is given the conspiracy that did not join in that goal and that's one of the elements of conspiracy how hard is the conspiracy go does the bellhop in the hotel where actually baria stang a member of the conspiracy for providing reason to believe that this isn't different in the past is the evidence that they put on the government put on at sentencing not at trial and two that i did my understanding of the elements of conspiracy this whatever the goal of the conspiracy is every member of that conspiracy has to agree to that goal this goal in this particular case as shown from the evidence was to take it back to alaska and that's what in fact happened when i went back in the tide box like everybody has to understand the goal but now you know how specifically how narrowly or how broadly the final goal will sort of judge the case here and that's that's my submission is that that was the goal that every conspiracy might have a different goal we're going to do it because we're going to raise money for a church when i do it because we're going to get rich and by the m w's that might be too specific but when the goal of this particular conspiracy was and always has been to take drugs from different parts of the country three different source do don't go to him if if if if this organization had in fact all these drugs in california who's dealing with it was doing drugs on california selling some up in alaska and the government had decided to charge this case talking about alaska and all these people in alaska that it never proved yet anything to do with was an element in this case and if drug amounts an element that element was proved to be a certain amount and then rejected by the district court the government used the phrase conduct attributed to him that he engaged in in range permissible for the crime of which he was convicted and that's why i can't win an argument regarding a pretty oarlocks but isn't it doesn't it strike you hard in the belly and make sure not want to eat lunch here that the government want is going to go out there and what five hundred one grams of cocaine somebody that that's all they've ever done five hundred one grams of cocaine and it's ok later to show that he was thinking about something else and talked about something else and then final point the government mentions this long history of cases where you use this other information all in this history here was invented in one thousand nine hundred four and implemented after that i mean it's twenty years old and that's a relatively short period of time blodgett we noticed that this case the briefing in this case was filed under seal and as i understand it the rationale was that there are confidential communications