morning ladies and gentlemen just graber and i are very pleased to be joined by judge kobayashi of the district of hawaii and thank you for taking the time out of your busy trial scheduled to come and help us out on my question the first first he was entrapped as a matter of law second if this conviction is not overturned on this basis he argues that the case should be remanded pre sentencing because the district court improperly determine the value of the rhino hor  at issue in this case so they did that in two ways first they use the asian market when there is a legal us market and second in calculating the value of the horns they allowed an estimate of the weight when the horns could have been removed from their mountain and they could determine the actual weight while i will briefly address the entrapment issue i plan to spend a majority of the time limited time we have this morning and the sentencing issue that's why this case was expedited which we appreciate this case along so quickly and allowing argument this morning may ask you with regard to the valuation issue under the sentencing guidelines it talks about the fair market value where it can be reasonably ascertained and where it's not and it provides that so we're talking about fair market value why is it your position that the domestic market would be the fair market value is there really a market domestically there actually is a market domestically and there  evidence in this case that there is a market doing this because there was evidence that there were separate and isolated auction where they had a certain value but there wasn't an indication that there was a market for it well we would argue that that is the market and in this case there was actually an auction in virginia that was discussed by the informant here mr conrad where the price was exactly what was paid here which was fifty five thousand dollars so we would argue in a case like this where there is a legal us market and then l g is to the to the i call him the hunting guy cases where we look to the market where the  servicer or the item was actually sold that's even also true and the i'll call it the pink cake tours case out of the seventh circuit because i can't pronounce the name of the defendant right but in those cases those are so isolated sales and it's also what's the significance is that it's the same amount that it was sold because that's that's not the retail value these people weren't selling at the defendants weren't selling our retail market just drug cases if you have  and you're just selling it to the distributor the distributor doesn't turn around and sell it on the street for that value the retail market value would then be the street value and that's what's used when we determine ranges for sentencing purposes well we don't know what it would have been resold for and in this case it was never going to be resold because the whole thing was a sting operation so we're dealing in hypotheticals completely and looking at what market there well there was there was evidence that the ultimate market it was in and that there are only one of the people testify that there are only one or two people in the world who are really in the market for the this and that you know  there's you know it goes for twenty five grand a pound was part of the conversation so there was evidence as you've described that there was also other evidence that differed so why was it on reasonable for the court to consider the other evidence that the ultimate retail sale would be an issue because in these type of types of cases when we are looking at the market if there is a us market that should be the one that is that is used and certainly it's going to be it was clear was going to be resold at a profit but we don't know how much of a profit it was going to be and there is case law that says that that the amount that the  seller sells to the intermediate buyer is is the floor and if we can't determine what the next resale price is going to be that it would be perfectly reasonable to use that amount it makes a huge difference in the guidelines for four levels so it certainly makes a big difference but in the commentary two section two q two point one of the sentencing guidelines it says where the fair market retail price is difficult to ascertain the court  ay make a reasonable estimate using any reliable information and then it says such as so in this case wasn't the evidence provided with through the agent and also that national geographic article that the asian market and the information about that cost estimate isn't why isn't that sufficient reliable information for the judge the trial court to rely on wellstone unreliable for a couple of reasons and i actually think the government was caught off guard here that this was even going to be contested you know and never been contested before all the other cases in operation crash ended in police where people agreed to the asian market price but that doesn't determine what would thousand up to thirty five or fifty thousand it's confusing because some of that's in kilograms right you're trying to convert it there's also evidence that the market price perhaps because of the efforts to shut down the market was actually actually that's kind of backwards economically but the argument was that the price is going down so trying to pinpoint it at that particular time was was difficult and so they tried to use this national geographic article we had the testimony from the agent and of course the part that was most flawed about that is they could have removed the horns from the i mean you and then you could have actually done a formula even use in their asian market theory use a price per pound times weight and i mean this court would never let the government get away with that and it a drug case i mean if you hear their excuse was well we didn't want to damage the evidence well i mean at this point we're at sentencing if for some reason that were remain ended there could have been stipulations done there are pictures i mean there's absolutely you could have they could have done that but they didn't so  why is that unreasonable i mean it's not what's possible that's what's reasonable right so there was a reasonable estimate that was given and in fact and the sentencing court decided to were called referred to as a low estimate right with regard to just before and there was reliable testimony arguably by the scientists i can't remember his name  approximate it rate and why isn't that it doesn't have to be exact but it certainly has to be a reasonable basis it doesn't but when we're talking about let's say what's at issue here and months of the person's life i you should be even even more reasonable as i said it could have been lower there's another suggestion that's out there when we talk about resale is the informant kind read talked about sale for  hundred twenty thousand i mean that's another one that would have made it to level difference i understand that the judges is trying to estimate it but here again when we're doing a formula there's no reason why they couldn't await their horns and i'll save may please the court and my polacheck on behalf of the united states trafficking is a global problem and that is why we are looking at a global market when it comes to sentencing and the trophy is that are here in the united states are being used to fuel the demand that exists in asian countries mr levine in this case willfully and voluntarily engage in an illegal interstate sale of a rhinoceros horn why wasn't it possible to or why didn't the government take the horns off of a mountain and get your own i would just simply say that the as we've mentioned in our brief at the time that the horns were still in the government's custody it was believed that this would be stipulated to as as opposing counsel mentioned this is the first case where the where the value of the horns has really been contested so it was you know that simply why the horns weren't taken off there was also concern about damaging them it's not just removing the screws if you take a look at the picture of the horn that's in our brief you can see that the horn is also surrounded by plaster there's concern that trying to remove the plaster as well as the wood could cause damage the horn in the event there  then you know pretty you know present exactly what the evidence was it just simply didn't happen and so at this point as has been mentioned we're at the point where they weren't weighed so the question is whether or not the district court abused its discretion when it estimated the weight of the horns and here there was testimony from the agent that he weighed the horns and the amount and they were sixteen point four pounds he presented testimony that the scientists estimated that the horns were somewhere between twelve thirteen pounds and then the government used a conservative estimate of ten pounds for purposes of the pre sentence report and the district court adopted that ten pound valuation so it could be that if the horns were weighed they could be more and if it's the court were to then use the the per pound values that it did use here the defendant could be looking at a valuation that's more than two hundred fifty so he was given the benefit of the doubt at every level of the the estimation here and that's for that reason it was not an abuse of discretion for the district court to make that asked him it now the other defendant and his trial thousand dollars imposing counsel makes the argument that this would not be a reasonable basis for the sentencing court if it were was illegal substance say it was methamphetamine or heroin or cocaine it wouldn't be a sort of guesstimate there would be an exacting amount that would be required why is this different well we're not talking about substance that that is weighed as a matter of course it's it's it's not in not a simple matter of setting it on the scale to actually having to remove it very carefully and without damaging the keratin so it's just not talking about the same type of substance here so in terms of  circuit case of dog us versus dog and that was a case that dealt with the bear gallbladders and in that case the defendant lived in west virginia and in west virginia it was you know it was legal to sell bear gallbladders within the state but he was engaging in a trafficking operation with individuals who lived in virginia and in that case the defendant argued that the court should be using the price of the ladders where he was selling them where they were legal  court instead used an estimated value the highest value that that the ultimate consumers in virginia had paid even though there was a legal market in west virginia the court said that in this case the ultimate consumer was paying more because they were they were getting they were smuggling their call bladders in to support the defendant's theory that the market which the transaction occurs use the market in which the ultimate lacy act is intended as was discussed in the case the the point of the lacey act is to protect imperiled wildlife populations by gradually drying up the international market for endangered species thus reducing the poaching of any such species in the country where it's found here the market that is causing the risk to the existence and continued survival of the rhinoceros is the asian market there really we're not talking about two separate markets here it is a global market rhinoceros horns that are sold in the united states are ending up in asia all right but but in this particular case there is no evidence that that these warrants were going to be marketed in a few of us was there well i think any reasonable estimate of the market value based on any reliable information here the government presented ample reliable information that what is causing the harm to the rhinoceros is the asian market i didn't  horns out of the suitcase and the agent talks about how they have a great weight and how the weight is really going to help him with the resale kwan says yeah i hear that they're going for twenty five thousand a pound now and agent jurgen says almost thirty and  kwan says while that's that's i hope you do really well that's the exchange that takes place there's also evidence where kwan is talking about how libation cup that he mailed to agent organs he says that if this made it to brief each one of these was an illegal sale that's why they're being brought up in a in a case these are these are citations from sentencing memorandum so each one of these sales was illegal design the case was a sale to a chinese national he it was a sale to a chinese national these horns even though they're being sold in the united states they are ending up in the hands of asian consumers so that that's really the market that we're talking about here we don't have t separate markets it's one global market that is caused you know leading to the experts extirpation of this species so it for those reasons the court did not abuse its discretion when it relied on the reliable information that the government presented at the time ascendenc going to take place overseas and to attribute the conversation with kwan in a hotel room right before he's arrested when levine's not there and doesn't know anything about it is extremely unfair under these circumstances finally we're looking for a very limited remedy here and one that can be limited to this set of facts we're not looking for some expansive decision like the government is talking about foreign markets we're looking for on a closed record setting the price of fifty five thousand dollars which is what the parties agreed cancel isn't this our standard remand for resetting sing on an open record isn't that how it's normally done yes it is but in this case where we're asking that a specific price be set there would be no purpose for that as as well the government would be getting a set second bite at the apple they had a full chance to argue this below and under those limited circumstances a close record would be appropriate i also that gets appropriate that we use the legal market here and to talk about a trap and for two seconds the defendant was trying to make illegal sale in the us he didn't know about the foreign market and it would be unfair to set a market price based on that foreign market when he was trying to do a legal sale in california