the first case is number fourteen days thirty five sixty one united states versus dennis mr yesterday and mr c bait you can't separate them the only way that dennis had was ever going to have access to wholesale quantities of cocaine to sell was by committing the armed robbery so he would sort of write for the poison stre came about that's that's correct now we had independent basis for arguing why he didn't have propensity to sell wholesale kilograms of cocaine so what we are you know our creech separately from the derivative it was a much smaller body the most you ever saw was one tenth of one kilogram and that's why i said it's a quantity issue yes ok so that's something you need to have a propensity for this quantity of drug dealing yes you making in our briefs and here on appeal is that that question because a jury could have drawn that inference should have been put to the jury it doesn't follow as a matter of law that has he previously sold some drugs understand but i mean that's from our circuit and i would i distinguish that i mean the court said you know we're not going to exercise the quote chancellor's foot close quote a veto over police conduct of which we don't approve maybe it wasn't you know something you think you should do but it is but is it entrapment especially when in the case of your client he was active in the planning for this yes he was active in the planning but the fact that he was active enough i think there's not necessarily as a matter of watch out predisposition that best case i can cite you for that usually what would happen is you know i don't feel real comfortable here and i don't know if i believe you know ok we maybe i'll just be in the car i'm just not this is what i'm don't normally done in the past you know i've done some stuff i've done some time i'm not a robbery guy never said anything that even came close corroborated by mr larsen says second while i understand what your honor saying about what would ordinarily happen denis is actually not the ordinary person he put on and you put into evidence that he suffers from cognitive impairments and is more susceptible to influence specifically here informants appeals to sympathy and to friendship to make him to convince  sell the amount of drugs is that the reason or the reason that he thought that maybe yes i'm going to trumped up the corner yeah no he said well yes i do you think you think yes judges did say the government trying to quiet but he also said on the record there's nothing that i've seen about this defendant that suggests that he has the capacity whatsoever to sell the amount of drugs that he's been charged with that's in the record well not having the capacity to sell that quantity is is not doesn't map perfectly on to the crime charged right whom nobody does because he was a conspiracy charge it is a conspiracy that's correct but that it's all his to do is help to guide it's going to move it you know acquire the quantity and then the other guys  still i would just go back to them getting back to i'm trying to help you here but i i don't understand your argument for entrapment on the drug charges to be nearly as strong as the i think i think there's a close i think there's a little bit of wiggle room there and here's where that way the romans i think the question of whether the charge should go to the jury is really a discourse missions if you haven't washed up is there sufficient evidence from which a reasonable jury co right he doesn't have the substantive evidence we don't we don't think the elephants looking at looking at all of this were president including right and marino we don't think he met the standard on either  in a rule twenty nine context or this court in appeal from context has a look at all of the evidence in the record all of it and although it's still not making credibility determinations it still has to look at all of the evidence and then the question or but you've got to look at all of us has them for example his testimony from his own mouth it's not just that he has fire convictions or dealing in various kinds of drugs his testimony is that he was dealing in drugs very soon after respect to the other two crimes i i don't see the evidence in the record which shows that this guy had a propensity to do one armed robbery where is that in the record i think you can then again if if there isn't that affirmative years how do you get overcome that i think we can overcome it through this we're not saying that the evidence in this record shows that he himself from his prior convictions through his own testimony admitted facts showing  propensity to commit violence at least not in this house but what the evidence also shows is when he hears the pitch to rob this stash house who does he bring to the party he brings codefendant mitchell had mess and my counsel has admitted that you can see that in their brief in their opening brief and the testimony is this testimony in particular is a page i believe ten twenty eight were ten twenty nine in that ballpark  but that sorry ga twenty and twenty nine he admits that he brought he wrote in mitchell and he also admits in his testimony that he knew mitchell had a reputation for likes to carry a gun and that's a j one sorry ones are of five five and so it's not so much that you're judging his predisposition or lack of propensity to engage in violence based on just his own record but also art the other it's not just by the way mr mitchell that he ropes and he also at the very first recorded meeting says insists on even when mitchell suggesting they don't need another guy mr den i mean it's men of severely limited intelligence dealing with the f b i i think you know you know from a trauma perspective you have to accept that testimony thank you sent it goes to whether he is all or not but even with that has stuck money in the rocker two things in the initial zone direct examination towards the end of it is counsel asked if you've heard that testimony that you're not disputing that you couldn't understand what was going on you could follow it and dennis said no i'm not saying that i understood what was going on i could follow that's where the end of the direct testimony of mr dallas but right on top of that i think despite those impairments what that what they are of course our expert disputed that but you know that's pitched the bank robbery idea according to dennis three times the very first time the hedge that dennis is reaction was he's watching too much t v and he were in the refused to do it he declined all three times despite what he and i have not reversed on these before but they might do it now and it's a really close call in the end and you know reading this thinking well yes yes you're correct so what even you know let it go to the jury what's the harm why was telling the truth you have conceded i agree we have to assume he was telling the truth and all i'm asking the court to do is look at all his testimony not just bits and pieces of testimony on that because among other things he admits it was his idea to bring in a let's say it's a it's a running movie that concludes at the time you get the defendant to agree to commit the cried because it's a running debate among various courts as i know your honour's well aware i mean a lot of mayfiel that the reason here for the sentence being to be creased significantly from the range that initially existed the stuff we're on what do you what do you do to try to walk back a little bit the tide the types of situations that where somebody doesn't have a predisposition to commit the crime and yet all the circumstances  context are created for that person just to walk into it the thing you have going for you here is i don't know of any evidence of mr dennis that he said he did not have a predisposition to do this crime a couple of things in these kinds of cases you have to make sure that the person when you're approaching them if you're not required to rethink this course of his long personal driscoll said at least in the outrageous government conduct context you're not required the even not even have a reasonable that that interview was in up pages one and two are supplemental and it's the report describing not which reported a number of things including some of which our agents were able to corroborate and then they sent according to that report they sent m about trumping up one of the just to jack up the mandatory minimum my ear i think that wasn't our intention in this case yet that there is there is one contradict the testimony in the reichard that the quantities that we selected for purposes of this thing worse were driven by what a t f had and other law enforcement agencies have recovered in sash houses in the area and that the quantity it uses does vary depending on what part of a country or from there using a quantity that they think and so we take issue with that in the sense of that finding that that's really not we can appeal that year and we don't have to appeal that here because i think one of the concerns here is all we exercise in that kind of charging discretion responsibly and i know the score appreciates as much as i do that i mean on the one hand the executive branch's exercise of charging discretion is really that's a core function the executive branch but at the same time that there should always be respectful the whole between the court and the executive branch about what is about how we can better exercise that discretion but i think we did exercise that discretion well we're at least recently well in this case and we're committed to continuing to do so and we did we had a defendant who by his own words on that recording had said he was very familiar with drug packaging was talking about the kinds of stands talking about unwrapping the wrapping the bags of the bricks of cocaine hider outcome and so when you get that kind of information coming from the defendant that i think if you were recent basis to conclude that he is for real he's not it's not just puffery that he knows what he's doing and that when he says he's done this before we're looters who haven't done it before as he does in these recordings that there's something there's something to that but then a final and i realize that one grossly over is i think it's a responsible exercise our discretion probably here and we're committed to exercising and probably going forward to make sure we're not roping him as the supreme court would say unwary in a sense that we're only roping in  really one key question there might be incorrect in my statement to counsel but i don't know of any statement made by mr douglas that indicated that he did not this informant's invitations to commit similar are brought me now let me also we also just be clear although the government certainly has a strong argument that could have been made to the jury about why dennis was not  that taking that record in the light most favorable to him a jury could have credited and acquitted him a lot that evidence was introduced here he was introduced in that he in that he testified that he was induced by the informant who was his friend of yours and that in whose mother he knew and that most of the times and the informant appealed to him on the basis of that friendship and through sympathy in order to get him to of violence and a jury could certainly be within his right to find that although he had some prior drug crimes they were totally different then selling more programs of their was unquestionably the government's initiation of the offense and finally mr dennis has a cognitive disability that made him more susceptible to the informants influence in this case i just want to emphasize again on regarding conspiracy to sell drugs