for defendants arguing and a one government attorney i am going to keep that to the traditional format that is i will have each of the defendant that the sentence of life violated the th amendment jonathan delgado was seventeen years old at the time of the commission of the incidents that led to the special sentencing factors  count one the rico conspiracy he was twenty six years of age at the time of the sentencing the court using the special sensing factors in viewing the guidelines the advisory guidelines found that he had a sentencing range of life the district court indicated during the sentence that it carefully consider the submissions of the parties and also c at that at the time of sentencing for the appeals yes now while miller the district court in the sentencing went on to recites the two incidents that occurred before my client's th birthday as reasons to impose the life sentence at the time of sentencing there was no mention of the defendant's age or the impact this use may have had upon reaching  to the need for the district court to talk more about the use of the of the individual i am not saying that miller is on all four certainly it is not because there was a mandatory life without parole situation but frankly it's a distinction without a difference because in this particular case mr delgado is receiving life and will not be parole based upon his convictions why pause five years actually yes even more so you're correct your honor i would submit to the court that because the district court failed to look into  kind of incident where the sentence that really needs to consider actors is well taken if you see this interchange of but if the judge considered as the judge did judge i would submit that the mere incantation of i have considered the factors is not enough for a juvenile here especially when the court takes pains to cite the crimes that the defendant committed as a juvenile for his basis excuse me to impose a life sentence so on the one hand i agree it sounds as if it was covered but on the other hand as you listen to the words i submit it wasn't and i would submit to the court that it is unclear and that a new sentence should be returned so that the judge the district court can make it clear that this has  with as the court recognizes and supreme court recognizes what we have a certain class of person involved in the sentencing in this particular case a juvenile so i would submit to the court that something more than just a mere incantation is required so that this court that and other appellate courts can be assured that these factors work taking into consideration as i review the sentencing of the district court no one can be  suggest the opposite of incorrigibility that that there might be a reason to allow for the possibility of parole it's quite however far off in the few certainly  understood he was twenty six at the time that he was sentenced we had submissions from family and friends indicating that he was hopeful he was working in the community he was going along  getting a profession things and also it should be noted that the last incident involving my client in this conspiracy which was an eleven year conspiracy he was  eighteen maybe turned nineteen the last time that any incident involved in a conspiracy alleged his activity so for good for half the five years he was out of the game and i say that understanding that when it comes to the conspiracy laws you basically don't get out of the game and use unless you for a firm with get out of the game put his lack in the ball been in the gang for four to five years i start out by arguing but i actually think i simply unless the court as questions argue point one of my brief our position is that the evidence was legally insufficient to establish guilty of the murdered have found he has to share the mental culpability stablished by new york law for the offense and bad isn't that intentional a acting so as to cause the death of the seventy three th street gang members and that's made clear both in the language of article twenty of the in a lot of new york in the section itself one  five while there isn't that data dense that my client certainly you know was not a nice friendly guy and he was looking for some harm to book for the th gang members there's absolutely no evidence in this right he did in fact according to the at that and say that to me that did not show that he specifically intended their deaths it so it shows to me and i think it's the only reasonable juror a inference that could have been drawn is that he was basically saying this is up to you do whatever you're going to do because and leaving it to them but afterward when he said they got they deserved but he didn't even really know what happened at that point a he wasn't there be the wrong people you know and i mean he ended up killing hardly innocent bystanders but they actually consistent with all of the circumstances that led up to the shooting itself because when my client went into the park he isn't talking he isn't saying let's do this and frankly no one else has at  basically a late comer the other people have already seen the weapons he's wondering what is going on at that particular point so he clearly doesn't even knows the size precisely what is happening social place i mean there's nothing that indicates that he was either knowledgeable of the planning or that he participated in any way he just socialized at this point and that's you know my point is basically that when he says do what you have to do he's basically leaving whatever was going to happen for others to decide it and with the government comes along it makes me i'm sure  i can't see that it was at all irrational in light of his reference to retaliation like the ongoing practices gang and so on what about the evidence before the jury makes it irrational for them to have concluded that he had the requisite intent you see i think that we have a whole bunch of circumstances and even if you consider them cumulative live one upon another upon another does not in this particular case we would say let someone draw the inference that death was what he wanted it was their destinies would believe for example that he did not see the gun laid out on the bed and there is a good reason to see that that i do believe that the record shows that he came in after the others had seen them and there was nothing to indicate that he in fact saw that i think that but they there there was testimony that everyone was talking about what was going on and they were laid out in the open and people were handling them and trying to figure out which who was going to use what it's hard for me to think he would have been insulated from that  reading misremembering something from the record but i don't actually think i am i think that the testimony was that he came in after this whole who's using watch here or the weapons on the bed he wasn't there insufficient to show that smith acted for the you know for maintaining or increasing is position within the gagging and that's actually pretty simple argument on this we absolutely recognize that it doesn't have to be that he had the sole intent is to do it it could just be one of the one of many things but here there was there was absolutely nothing for that i mean we concede also that you're required to be a member of a gang to quote put in work however often fighting which everybody is supposed to do it impacts everybody to do this is pretty much a case where the people in this gathering chose their own particular roles it's not a particularly hierarchical structure some people did this some people did that in fact many of the gang members were not participating in the shooting that occurred on that day at all they had nothing to do with that even though they were around it's not as that everybody was required to do everything and this to smith was already in quite a senior position this particular gathering in addition to that in terms of increasing his stature within the gang this gang was sort of so loose that there was absolutely no in testimony indicating what one could or might have done to do that for so for all those reasons we ask you to find that the the evidence for the counts three and four was legally insufficient thank you council you have point deals with the insufficiency of evidence in this case as it relates to mr lopez the st dealing with the viking charge we contend in our brief lays out a lack of knowledge and lack of intent to murder individuals on april seven street people that were there did not identify his car or the vehicle which was a bright red ford explorer cooperate in witnesses generally said lopez arrived at the apartment complex there were no discussions not involved to the scene for the purpose of carrying out the murders well i would say that what the the evidence would show that he drove even assuming that he drove you still have to deal with the intent to murder i did cite various cases on that in new york state law which which is a very high level and your driving of an individual to a scene is not equivalent to that i cited comfort in some other cases against substantive law were dealing with new york state provisions and i would submit they were not satisfied with respect to that so that would be shooting he just was worried about damage to his truck there was one with one individual that said that he also said in earlier testimony on page two thousand two hundred and twenty one dollars there was no discussion about intended activity just how to get there so mr jamieson had concerns testimony about that but i i'm aware of the quote that the government lies on but none of the other parties that were testified in the vehicle said that which i think they have testimony that not only were they that well i guess what you're saying is that you have a different version a different narrative but we question have to look at see why it was irrational for the jury to conclude what they did while there was some concealment i think in the morning as well and that  y drove up and they went into the vehicle and dropped them off but again i think with respect the intent to murder which is very high standard in that i don't think that portion has been proven the other point is dealing with promotion of an interest in this  group there was testimony from mr egan for example of multiple shootings multiple criminal activities my client wasn't found to be involved in any of that he was involved in college working and d m v except for us so i don't think that element was  as well with regard to the biker charge as far as promoting or maintaining a position in this case i think that also was not established as a part of the element i've also raised things elements related to the current foresee that the government failed to show a nexus between the alleged possession of the firearm and any drug activity we've also raised issues on the drug conspiracy sufficiency of that in the rico also want to point out to the court i know there's a number of points raised in the brief the issue of the sentence that mr lopez received again my client denies the charges but for the sake of discussion the divide car charge  which has a mandatory life sentence very familiar with the sierra case and so forth but i think i still have the right in the particular facts of this case to say that that sentence was harsh and expensive excessive for my client both in terms of the  possibility of parole i've provided i think very compelling letters of recommendation excedrin which showed his honour's in school comments were caring for his elderly parents so i wanted the court to be aware that that particular request that the court consider the sentencing he would contend is excessive sentence i did cite the cruise case which judge hall gave some very extensive analysis and reasoning for her departure on a bike her case so i did want to point that out the court's very familiar with the sensing commission and their findings about the maturity and that some individuals don't gain  reasons reasoning skills and abilities until the age of twenty five and i know the court's aware of all the cases that have cited in support of that so i court is where of that so i would indicate i'd ask the court to consider those factors  relative to sentencing in this particular case i'd also point out that on the point three i did raise some issues with respect to the rule thirty three dollars motion in the interest of justice we detach some have to do some statements from mr hill and gansey which we would contend would give the court basis to give a new trial there was a reference to the outbursts of a family member during the trial which was very inflammatory the government had made some what i would submit inflammatory comments referring to the defendants as i as an execution team under all those factors i think that the short deliberation period was of the of the jury actually deliberating was going to stand with the record shows that he did not eat in the bed in committing the crime and the government's argues that he prepared a forty for revolve or for use in the car but the record does not support their argument they were got on fox as well it should be but here there is no murder and under federal law and under state law there has to be a death in order for there to be a murder anything else is an attempt which is not with what he was convicted on and what he was sen conspiracy assumed the murders those were those are factors which the sensing judge found and they were not supported by the evidence so when he when the sentencing judge imposed a life sentence on the conspiracy he was doing it based upon the concept that there was a murder which the record shows did not exist in addition you're honest there's no evidence the murders happened but but mr harper with your client would say or their participation was to  to have got yes or no i don't look i've no doubt that this was a horrible situation that occurred but the question is is was missed and a standstill guilty of aiding and abetting in the murder and literally him to have on in any way the record is very clear that he did not participate in the planning both of the all of the cooperating with this is testified about it did not have him put disappearing in any aspect of the play  rank name right he testified that he remembers that the planning was done by people who had guns and mr stossel did not have a gun he did not bring his gun there he did not have a gun when he was president he was a moment when he was looking at the gun and then mr hoggart came and took the gun away from him but he was not know when testifies that he was involved in any of the planning as to what was going to what was going to happen who is going to go where he knew what was going to happen but he was not part of the planning of this this is a case in which we argue about prejudicial you're going there and i know that the circuit is very reluctant to have a grant a reversal based on a prejudicial joined but this is a case in which mr and stasia was basically run over by the evidence in this case involving other people but there was very little evidence of him being involved in any activity and most of it was wrong when the prosecutor in the opening statement indicated that the evidence was going to show mr  to the to the apartment and the evidence proved him wrong he did not bring the shark and then they began to kind of rush around and find a couple another theory and they came up with this idea that somehow he ended the gun to mr harper and that was the help yes so under the standard that we have to apply here that we have to give all inferences in favor of the government and give all credibility in favor of the government the slightest bit of evidence but that d not carry over to the planning of the actual shootings this testimony from cooperating witnesses as to what mister anastasio was doing in the apartment and he testified he was listening to music  and this is an apartment that we know had several rooms there were people coming and going it was not as if they all gathered together and had a planning session they came into this apartment different people came at different times it came for different purposes certainly there were people like the the individual referred to says little boys who came in for one purpose and one purpose only and out was to participate in the in the shootings and then there were other people who were there and look  that we that they argued to us oh ok yes i can do that for banks it would be helpful ok so st regarding that i got green who argued st for mr delgado he argued before the court would mean the regarding the sentencing and acknowledge that this was not a topic of conversation at the more mechanistic about how their lives how the judge arrived at the final numbers you never what as far as i could tell in reading the transcript  eighteen and so there were just simply had no place here at the time of this crime thing i understand the court's concern certainly since that time that we've had other decisions such as microbrewery and now what i would i'm sorry yes please go ahead i'm fact out on the porch and building and now he was wrong about those people were and their relationship to the seven straight but when he pulled up yes they have their guns the gun has been distributed i don't disagree with that but that was the point when you pulled up everybody had their guns and they were getting in cars and he called and told them where to go and so to say then in that context taking those full facts out there do what you gotta do knowing that they're gone and they got what they deserve is what he said g all those things in that moment regarding the shooting but let along the things that happened beforehand he was part of the group that was at the park to beat up the suspected members of th street and the park they there was a  mr smith unless there's questions about that i would move on to the testimony that was not contradicted in the record that both as was the driver who had been at the hospital the night of the shooting he followed the ambulance to the hospital was present at the hospital while the others were at the apartment  anyone to the hospital but then he went i'm sorry to the house i keep saying that i'm sorry he went to the apartment and that mr yancy dropped him off so he could be a lookout and so told the people look out for you know where they should be going and then drove fluid where he was going to drop him off like he was going to drop him off on a street corner they st were directed to drive by pennsylvania to drive by those the home where the porch was where everybody was out for the evening and also included hey who's there says that looks like them who knows who that is and they but he tell me who was there and that was discussed in other people's testimony as well as the  said there was a lot of conversation but when they got to pennsylvania they certainly were talking about who was out who was there and what you know but the plan being they were going to be dropped off obviously they could go back in to do what they had to do in the word thirty eight revolver to the park that he showed off to other gang members he had of the park and we know that you know somebody having a gun at that age somebody walking around with a gun dealing in drugs that's the purpose that's why they have a gun for the next but there is really everybody knew everybody was involved in the gang knew what it meant to put in words they knew what the different roles were if you worked your way up the training and the horrible result here was there were there were multiple murder and there were multiple shooting issues raised regarding the sentencing that the charges that did result in life in prison for the vice i started here were mandatory sentences that he  one unless there's further questions regarding mr lopez i would move on to but that's the same all but for all but one of these defendants that they were not the shooter here we only had one shooter mr delgado and it was his other who had a mystery on the stuff he was not in the same he's on a par with the others he was more involved frankly in my room i thout he was the person who was there when the shooting occurred he was there next to he when he was dot even when set apart he was part of the federal or new york accomplice law you have to prove that he did something that actually further the commission of the substantive crime this is not correct well i'm looking at the jury i'm sorry go because i want to expand what he did that actually further the commission of the crime of murder particularly because my understanding is that what the government points to is that he relinquished a gun that he was or mcdonald and i find it very difficult to understand even granting that that on the stuff you know it was you know eager for the retaliation to go forward what he facilitated the actual commission of a crime and in your brief i saw you focusing on as the district court did that he relinquished holding a gun to his senior in the organization defended harville and that look at the statue you know section two or look at new york law there are there actions actually or look at rosemond for example well there's some old common law that says mere presence is enough i find it really hard to believe that being present while people are planning without having point to any participation in the planning or any suggestion even word spoken that that's enough to the more you emphasize how little is required to support the conviction the more i start to wonder whether the sentence it's not constitutionally disproportionate i mean he and somebody  constitutionally i have my answer for the court is what the jury instruction was and what's been given in every case has had this sort of a again every i don't want to get caught for saying every sense been given and that that was and before the district court and at that point again with regard to this particular defendant who i thought just the court was overly involved with not just sitting back watching everybody do this stuff he was participating he was supporting he was encouraging he was trying his best to get out there and sue well i hope you can try your best to do something bad but if you don't succeed i think we should all be jacobs was pointing out to call that he was c s to cut out all of this sufficient support of mandatory life sentence but i will take another look at the jury instructions your thought in mind didn't fire but i'm not sure i don't understand i don't see that and my reading of the case law as something that matters in terms of whether or not this defendant and that and defendant are evil as well were guilty of includes the aiding and abetting and i don't see that that's not proven here i didn't see the jury was properly charged i do think that there was factual support for their finding and that their determination on that issue being the l fear may not in the clear but yet is unique to jonathan the god oh i had requested that manslaughter be read to the jury and more importantly extreme emotional disturbance because the indictment charged murder in the nd degree mr delgado situation was unique in the sense that his brother had been shot seriously wounded he went to the jury to the hospital to see him the evidence showed that he was crying he was angry and yes he wanted retaliation as well and of course we know what the result was we've been talking about a little last hour and a half my point is that the jury was left with only one choice to say yes or no with respect to murder in the  nd degree they were never given an opportunity to consider that there may have been some mitigating factor such as the extreme emotional disturbance which led to the jury finding murder and only murder they could have done that but then again i think the jury or the court should have been trucked in that they could have found otherwise that another crime other than murder that occurred and it would not have fit into the indictment and therefore i believe that based upon that er indication that my client was nearby heard anything only testimony is that thurmond himself men died that whoever that whoever showed up was willing to in fact participate so this way  this has nothing to do with my client thought but to do with what thurmond wasn't that thinking and then referring to what happened in mr thurmond's on the same page just that they say is retiring t and forty eight it's clear that smith in fact as i had stated showed up only after the guns were viewed and the men were men were armed and that all he was told by the men was that they were going out to look that yes thank you i will try to summarize as follows mr lopez was at the time of the shooting eighteen years and four months of age he was not involved in the planning we would submit the government's closing argument had argued that possession of a firearm is a nine hundred and twenty four c violation of the by the defendants possessing firearms that obviously was incorrect there are many inconsistent statements between the defendants and i did go into quite a bit of detail in my had taken some sort of action and it's not supported by the evidence well that's insufficiency of the evidence no matter what to jury charges and here the a you say can't point to anything that mr anastasio did and