good morning your honor as they please the court actually all for united states with the court's permission i will try to reserve three minutes for a bottle sure feel free to just readjust the microphone i've been told not to touch them so i'm not going t told you can't do it thank you the district court's order dismissing the indictment in this case must be reversed indeed peculiarly that appears to be the result that the district court itself anticipated def strained to characterize this case otherwise but it involves a straightforward sting operation in which a confidential informant and an a t f undercover officer purchased real weapons from capable enthusiastic and judged by their own words experienced street dealers the government then charged those dealers with straightforwardly exactly what they did which is dealing in firearms about a license conspiring to do the same thing and weapons as felons and there is simply no way consistent with this court's precedent to conclude that that operation was constitutionally outrageous as a matter of high level logic that's an impossible result to reach because this court has found much more exotic and candidly morally questionable investigations not to be outrageous and this court hasn't affirmed a finding of outrageous government conduct in forty five years this this cannot be the case in which it does so and i respect defense counsel's efforts to support the district court's order in this case but they simply haven't done so based on an accurate representation of the record instead it's based on some mix of speculation without support in the record and ignoring facts that are in the record notably they've claimed that there was a flood of weapons introduced into compton there is no evidence supporting that claim at all they similar said that the percentage fifty seven guns over a sixteen fifty nine year on they've similarly said that the defendants had never done this before which ignores the objective evidence available to the a t f including the defendant's own statements that they were experienced they knew what was going on and that they had this established pipeline that was fairly sophisticated for acquiring weapons from out of state and in the first part when you go to a pawnshop in arizona it wasn't just going to a pawn shop in arizona the cia testified that the defendants mentioned using fake i d s to do so when they were arrested in october of two thousand and fifteen on their way to arizona partly in arizona they had in their car multiple thumb drives some gift cards indications that are consistent with what the cia understood was that there was some sort of fake id aspect to the operation and i would submit that that is fairly sophisticated the whole point of going to arizona presumably is to avoid the california restrictions on the number of firearms you can buy at a particular time which is why of course street value is higher in general and so i would submit that that is at least relatively straightforward partly relatively sophisticated as a means of acquiring multiple weapons for sale of defendants need any of the factors in the black decision in the government's view they do your honor and so the black decision of the first three factors and the black decision that looked to the defendants characteristics the phocians known criminal c characteristics of the defendant here or there was gang affiliation the government was going after a particular gang in a particular place defendants were thought to be associates of backing similarly they were already were introduced as affiliates of other gun dealers that the government was already dealing with so they came into the investigation as gun dealers not as unknowns and after the government encountered each of them this is it g e r one thirty five and one forty one the government did immediately run their criminal histories and so it's did by the time it continued to engage with them know their history similarly individualized suspicion black itself says two relevant things about that one is that they can be directed towards a group or a category of people that's in black which defendants were thought to be members similarly and that the government doesn't need individualized suspicion if or partly the lack of individualized suspicion with respect individuals can be overcome by defendant's assertions effectively about their predisposition which was abundant here and then finally the role government's role in creating the crime was entirely different from as in black this was not a creatively manufactured in kuwait crime attempting to district judge see this is the same thing as going on and buying drugs from street con i don't see the difference i share your core of the of your honor's confuse and i believe it is the same the the government went out and offered to buy a commodity ised albeit a legal product and then dealt with people that appeared as dealers of that product i don't think there's a way to conclude that that is constitutionally outrageous and finally we've taken the unusual step of requesting reassignment here which is something that i do with significant hesitation but i do think the standard is met here the court came to a similar conclusion recently and both dunlap which involved the same district judge and in florida which involved a different district judge from the central district and the factors that are most weighted to me are first there is indication in the record that the court would have trouble following this court's dictates the court indicated that it hated controlling authority and more subtly by releasing the  the defendants without making findings the court contravened at this course exact order that it do so in dunlap from just a few years ago where after a flurry of emergency motions the government paint an order from this court requiring the same district judge not to do exactly what he did here which is release defendants without any findings and then as we've emphasized there are comments in the record that overall indicate that the appearance of justice would be better served by remand to a different district judge well let me ask you about th times obviously referring to himself right yes your honor ok that's in happened here that's that's that's absolutely true i wouldn't dispute that that specifically didn't happen the record in dunlap was in fact much broader that is the one thing that was mentioned in the did at least purport to apply the black factors nothing like that happened here the court didn't even really give lip service to black it that it hated it and it invited reversal from this court if that doesn't satisfy a standard for at least serving the appearance of court not only said that it hated it then didn't apply it in fact reached a conclusion that in my view is entirely incompatible with black and it didn't even purport to do so it didn't as in dunlap issue a lengthy written order at least trying to go through appearance of injustice and that that would set justify every man to a different district judge might one of the of course it's uncontroverted on the record that this move to compton not to assist the for family reasons the testimony is factually the testimony is most laid out in the testimony from the hill trial and what i gather from that is that the c i had moved out of the area was unhappy there and then decided to move back to los angeles area for as you said family reasons legally i do think in the absence of a factual finding by the district court the standard of review does require this court to construe the record in favor of the government that makes the most sense whereas here there's dry records for the most part indicating what the cia's reasons for moving back were he did also testified to that effect live but there weren't any findings so there's no way for this court to apply clear air or review and so i would submit given the standard of review morning honors alexandra gates on behalf of mr pickett i plan to spend about six minutes arguing and then turn it over to mr newman for the balance let me articulate for the court precisely why the district court got it right in this case so in black over a forceful dissent the two judge majority said there was no outrageous government conduct but clearly suggested that it was a somewhat close case now here are the same factors that we had against the government in black are present in terms of individualized suspicion shootings all the things that gangs do as i don't understand your argument are you saying a t f had no reason to be going to compton well two points are on a first of all we're talking cops in our neighborhood broadly i think that's a fairly investigations just of based on whole neighborhoods of trolling but you got a history of violent crimes i mean this is one of the highest crime rate areas in the los angeles metropolitan area what more does it is getting better better ok i'm glad to hear that and i was hoping not to dispute that there was gun violence but gun trafficking and we have the second amendment in this in this country there's no evidence articulated in the record that there were unlawful call and sales happening and that is what you have  argument ms homemade about the false idea that of course came many months down the line once there had been not only inducements but also these ongoing transactions the question and this court has was very clear not only in black but the later case that cited in the briefs that what the government learns only after the fact can supply the individual i suspicion necessary to justify the sting if the government only had little or no basis for the individualized suspicion beforehand so this all came much further down the road and if the court know what's in the record although there were according to the c i a couple of people who had come by before the sting was was started with  no i don't believe that's the case your honor i don't think it's clear from the record whether smith the third codefendant in this case is actually one of the people who had made those comments to the cia but in any event then when the c i first started trying to transact with smith it actually took him tough the ruling under the circumstances i'm not unsympathetic to his concern and frustration to some extent given the way that the schemes are carried out you know you can question whether this was  two possible interview we have to go one way we have knowledge you think the case lies difficult but i do want to emphasize the black keys says that this is a close case i do think that the first three factors in black favor the defendants here there are other undercover agent out on the street in our contacts investigation to solicit the purchase of drugs it's quite different your honor because here what there was evidence of was that these defendants were doing our contacts deals and so had they sent the cia to do that we have a very different case there was no evidence that these defendants or in fact any one i would suggest at all it wasn't their evidence that came out through admissions by some of the participants that they had done other transactions in fact there was one transaction involv they're committing a federal firearms violations what's outrageous about a person who's otherwise predisposed to violate the law and to see if he'll not only sell drugs but also  r here that goes beyond black in the other cases and of course black says it's not an exhaustive list the extra factor here is that the a t f agents did create a pipeline there is no evidence that anybody was bringing in drugs into the guns into this neighborhood from arizona from pawnshops before this case the agents did apparently create that bringing this new pipeline of guns into a poor neighborhood where that didn't exist before that is outrageous that is largely what the district court relied on and that distinguishes this case from all of the others that the wasn't trying to thumb drugs at first he was just trying to introduce himself into the neighborhood maybe i'm not making my question please if it's ok for the police to go out and conduct an undercover investigation where they solicit the sale of a contraband item drugs what's wrong with going out and initiating an investigation of a sale of a contraband item illegal firearm because the difference in that your hon and in a normal sense where an a person survive money i want i'm looking for by drug yes that's one thing but here we have a confidential informant who spend five months or five plus months going out there dealing with these products well i can't tell you what my client knew was a knockoff are real prada purse that he knows is several hundred if not thousands of dollars he but it was he was getting cigarettes in huge volumes from this confidential informant now for your honour's may or may not be aware that cigarettes are nice communities are the minority communities are is currency currency yet but are cases recognize that in order to establish the persona the bon of the undercover confidential informant you know the government can give them two hundred fifty thousand in cash to go out and see if you can find a cocaine trafficker who will sell them most likely will quantities of cocaine and we've said it's all part of the dirty game that we play of cops and robbers in those cases your honor what we have is we have a c i that's under the control of his handler in this particular case we have no control of the c i by the handler at any time other than the fact that the somebody establishing that he's really a member of the underworld and therefore can be trusted to engage in our contacts transaction i mean it seems to be all sort of part and parcel of establishing the role if you want to align istana stablish in the role i've in a lot of these cases over the years your honor and the fact is that they never this establishment of a persona has never in my experience that in five five and half six months in and in creating the situation but also we're painting a very difficult portion here a painting of very broad brush of my it's not a gay member his only prior was an assault of a of a plumber who had slashed his mother and that was a of a few years earlier he i'm getting all these guns from pond shops and in the menlo park area and then of course we talk about going to arizona to gun shows and and other punch shots there what really struck judge wright was any pawn shop owner would be very suspicious of some guy coming in to purchase a weapon but also the fact that they were being paid two three four times the value of th gun he was getting paid you know seven eight nine hundred dollars for this for the guy wasn't that his asking price i don't think there was an asking price of some clear for the record as to how the price was a stablished i think that when they brought in the undertone of the deal too good to turn down thank you for my extra time very briefly the features that made black a difficult case for this court articulated in black at page three zero three and they were that the government came up with a fiction to justify the crime and went trolling in a neighborhood that was so based on having seen firearm related crimes are eighteen one of six to twenty eight and three twenty nine it was clear that they saw a crime they're committed by a particular gang and then targeted the gang that's not targeting a neighborhood based on interest being a bad neighborhood that's targeting a gang having seen that gang committing firearm related crimes which i would say that is different from what happened in black with the c s simply went to a bar that he thought was kind of ski's even where he might find people interested in a robbery him that's correct see i testify that he made it generally known that he was interested in guns he testified that he never directly solicited and went up to someone he didn't know and say hey can you get me a gun and these defendants were introduced by other defendants that went after they were already dealing in weapons and when they introduced themselves they came as by their own assertions well connected capable gun dealers on the pawnshop issue i want to contest the notion that that is so strange as to make this case that interesting to be honest i falls exactly was in the core of what the defendants are charged with they're charged with dealing in firearms without a license the whole point of that crime is to legalize the kind of arbitrage in which these defendants were engaged this isn't an ed a an antique dealer who sold a blunderbuss to a friend and didn't realize there was a licensing requirement these are people that are it appears on purpose undermining the california rules both about felons which they both were mine and about point  agents found out that the guns were actually coming from a pawn shop in their zone so the the record that is before the court here in december so that the first transaction with these defendants was in october twenty fifteen though it appears they were probably the source of some of smith's firearms before that in december of two thousand and fifteen so several months down the line the a t f ran a records check and found a record of their arrest in arizona the only the first and only reference to a  pawnshop and to the particular mechanism isn't until april of two thousand and sixteen which is right before they were arrested and so it was later down the line that they found out if the court has no further questions the government with them it thank you very much this matter