the government referred to them in a twenty j letter and i would like to emphasize the distinction in the market both wrong we are you mean don't we have a rule that you have now both violated and i apologize on both overly right there in front of everybody to violations by both sides i apologize and both ever have wasted your standing and against yourself but i think the important distinction in the case now before the court is the third claim of error and that is that the district court erred by refusing to disparate impact or selective prosecution by it seems like you have to have some evidence under the supreme court decision armstrong and it seems like you really don't have any direct evidence that the proportion of thirteen twenty six violations prosecuted who are hispanic is different from the proportion of thirteen twenty six violators who are hispanic you're drawing inferences from other things like proportion of hispanics and prison proportion of aliens that's take the thing and i have trouble seeing why one supported the other basically for the same reason judge  did make it clear we disagree with that characterization because we believe that the defense did in fact present some evidence of disparate prosecution and in support of that theory we support it we presented three therms to the district court each one of those three therms suggested that there was a disparate impact on hispanic males and i would like to emphasize a point perhaps not driven home as clearly in the briefs it also shows a disparate impact on males versus females in the seventeen california almost by definition have suffered an aggravated felony it is exceedingly rare in california to be sent to a state prison facility upon the first conviction for a felony how do we know that when i was a district judge some people to prison for the first conviction for felony she probably close to retiring and i supposed to just assume that in california they let him go you know i think that there is a different practice in california versus alaska that this that fact was discussed in the briefing in the district court was put forth as a proxy and was never contested by the government and i think that is a reasonable proxy the vast majority of felonies in california are in fact aggravated felonies we just do we have proof of this in the  you said it was discussed is there proof that i am pretty much all the felons and california in prison or aggravated felons there is the discussion that was not opposed by the government but i think you are even in light of the  that the other two therms also support the threshold showing of some evidence and i would emphasize the distinction of the policy currents turns and supreme court in armstrong for an armstrong the court addressed rule sixteen and was concerned about the burden imposed on the federal government by revealing for example prosecutorial strategies there is an important distinction here because in this case we saw a rule seven hundred sixty nine not in the federal government but it's take a studio facilities and we were not even allowed to proceed to the point where we issued the subpoenas and litigated a motion aquash counsel that even troubles me and that there's a real problem with allowing discovery in these cases and that is that you take a routine criminal case turn into a really big deal in terms of the time and effort that has to be put into the turn of the government from prosecuting it and the way the trial of the case for a large number of months while the discovery goes forward it's not for a real thing letting discovery go forward and it seems like your proxies are really remote it's like i'm envisioning that a whole lot more mexicans and chinese  would reenter after being at the ported because it's easier ski graphically more convenient and i would also in visioning possibility that more males than females would because a lot of people want to come to where you can make more money so they can send some money home to their family it's just you've got to have some evidence to show that these differentials in mexicans and males social logical and intuitions would support the fact that there would be a larger pool of male gender than female gender our complaint is that it's almost exclusive ninety four point five percent in our seventeen years of experience where hispanic almost exclusively only forty females out of one thousand five hundred fifty illegal reentry prosecutions were females those unbelievably disparate numbers suggest that there is in fact a lack of prosecution taking place and that is some this very low threshold showing for the lowest possible ariba discovery the rule seven hundred seeds of peace which would have no burden on the federal government in any respect the district court invited the defense and the government invited the defense to actually you please the court my name is chris desk i'm an assistant united states attorney and i represent united states in this case this appeal is governed by the supreme court's case in armstrong and that case said a few parts standard pretty terming whether  six fast three b two which allows for the citation of and published opinions were cases related to the pending case that related what the defense and the government have indicated that this case is related to those work kills defendants in the same district court case or something of that nature not just cases that involve the same christmas of log i think cases that involve the same issue are related and  is that the only reason why you should not be sanctioned for violating the rule that was my good faith interpretation of the rule your honor and certainly if you'd like me to supplement my argument by going back to those rules and briefing it for  among ourselves i'm sorry we will consider that among ourselves go ahead thank you your honor so armstrong sets up a two part standard the first part requires the defendant to present some evidence tending to show discriminatory effect and the second part requires that the fine it's present some evidence showing a discriminatory intent to meet the first prong the defendant must make a credible showing of different treatment of similarly situated persons and in this case at a minimum a person who is similarly situated as a person with a different ethnicity or a different gender who could have been prosecuted for violating section thirteen twenty six and strong it's quite clear that until that showing is maine i define it is not entitled to any discovery now the defendant's initial argument is that the fundamental showing a disparate impact but that isn't the same thing as showing different treatment of similarly situated people in other words merely showing that the law is in force primarily against or even exclusively against a particular ethnic group or gender does not meet the armstrong test and that's true because at issue here section thirteen twenty six and were not being prosecuted and the reason for that is that armstrong and turner both recognize that social logical factors affect the distribution of  prosecution here the district court found that there was an obvious commonsense social logical factor affecting the distribution of crime for the price of geography the proximity of mexico to california and latin america latin america california violate section thirteen twenty six in proportion to the representation in society in general and that's the very something that armstrong rejected and this court would have verified here was not society in general it was felons and california prisons in general i think that's a generous reading of what dr sullivan did what he did was he said i'm going to assume that the telephony state prison population mirrors the population of california with respect to ethnicity and gender so he got he termed the ethnicity of the california state prison population based entirely upon census data from the entire state of california so in effect he did assume that the prosecution rate should be los angeles county jail system found that seventy five percent of aliens removed from the facility to their home country had to return to the united states within six years and return to the criminal justice system he also referenced the migration news article percent will commit crimes again that same article in the sense that many perceive that states that ninety percent of the illegal aliens in the california prison system are mexican nationals those numbers don't help the analysis for a few reasons first they don't show what percentage of aliens in state custody have previously been deported nor do they show the ethnicity of those aliens so both those numbers really don't help his analysis or move the ball forward internet documents the female numbers again come from the census data about the actually i'm not sure that's correct for the female numbers again it's just a representation of the number of females in state make a reasonable inference that they violated section thirteen twenty six but again that's that's the type of inference that armstrong turner for have at this court for making also let me just ask you what's your response to opposing counsel argument that because the discretion and i read armstrong as saying that whenever you want discovery relating to a selective prosecution client you have to meet the criteria are armstrong set forth defendant isn't entitle to discovery based upon some unknown principle on doctoring he has to link his discovery request to some legal principle that would require the district court to grant the request here the only doctoring that could be at play it's like a prosecution motion you don't get to rule seventeen since you find that there's a need for a hearing and you don't get to a hearing until you they've met their threshold burden under armstrong of showing that they're like the prosecution and that there's some need for an adventure hearing on that issue so it's not proper to issue rule seventeen subpoenas last that first made it past armstrong thank you ron thank you the supreme court specifically or quickly to the three burns imposed on the prosecution of the federal government by granting a rule sixteen motion for discovering the selective prosecution case in that respect armstrong is going af set the case now before this court for much of the discovery sought in the discovery plan was from state custodial facilities would have no impact whatsoever on the federal government did not infringe upon rule sixteen did not ask for custodial facilities to allow us to identify other inmates with ethnic surnames other than hispanic and pursue further investigation to see if anything in fact were similar situation thank you counsel