five minutes five minutes five minutes and murder five minutes thank you with respect to the rest of the investors who say i'm going to ask the deputy to reset the clock for twenty minutes because we want to be sure of this everyone has a chance to police officers knew certain facts at the time the theorist of the individuals in the dodge intrepid they knew that a man by the name of manual by and his two associates were committing various drug crimes they knew that they had seen intrepid the day before the drug transaction in a parking lot where they had also seen men will buy they knew that day of the drug transaction and they saw the dodge intrepid driving around the neighborhood where the drug transaction was taking place and they knew that after the drug transaction had taken place and mr vajpayee had left the parking lot for the large intrepid drove into the parking lot and then followed the same ro and then conducted an immediate search of the green dodge intrepid and what about the evidence of this counter surveillance there they're the only evidence there is no evidence that they were actually counter surveilling anything there's no evidence that they were ever in a in a position to see the drug transaction and there's no evidence that they ever spot to look at anything or did anything they're just driving around the neighborhood there is evidence stop at a liquor store and one guy goes in and buys cokes and comes back out to get back in the car and drive off that's that's all that serious never in a position to see the drug transaction and they right they drove north the same route falling behind them twenty minutes later and continue following them why can't we take all of that into account well i think you've taken into account but all it might suck to is being next to somebody or being close to somebody  s if mr talbot and i are walking down the street and i stop to buy drugs and mr calvert standing there i get by the drugs and then we continue walking down the street mr talbert is not a criminal he has not participated in any crime he's not done anything he's just next to somebody who is committing a crime telephone call site showing there's some cooperative association here more than just being next to someone that's committing a crime well the telephone calls only come into play after the search because they don't know about the phone calls until after the search so that the phone calls and the existence of the guns in the automobile are the two fact that would go to the rule twenty nine there's a two additional facts that jury could have relied on to determine guilt but as of the time of the search all they know is the car was near right to be somewhere they have a right to be somewhere they have a right to be anywhere it could be that they were told to get lost because mr via a had some business to do and you know he had lost and i'll call you when we're done which would be perfectly legal and have been a perfectly and it's been a sin explanation for this and so with respect to the search there is no activity that would indicate that these men are involved in committing a crime what's wrong with that result officer saying that this is more than a coincidence that they happen to be in the same place at the same time i think reasonable as you can say i have a suspicion your honor that these people are involved and he could have made of the green dodge intrepid and he could ask them what what in the world are you doing here and and that might have generated probable cause to search the vehicle or to arrest the individuals they did and they didn't do that they didn't ask any questions they just arrested and our point is at that point time they did not have probable cause because a reasonable police officer could not conclude that these men it committed a crime at that point in time because you've got a five minute  specific reference i've referenced to the specific defendants by name or description engraved this was maryland in fact engravers maryland it's more ambiguous because they used to blank are two actors but there were two spaces and there's only one defendant on trial  hernandez is with manual by and they all tell us is that both of those two men tell the same story about we got a hotel room and we came to sacramento so clearly it cannot be we can only be two people the minimum we can be three i planned to tie you up or manual plan to drop you and tell us but certainly not the group and the problem this is clearly not harmless beyond a reasonable doubt in this case and it's argued extensively in the section regarding r twenty nine there is not sufficient evidence that's unambiguous there's no evidence of intent of the young man and the four young men in the car they are floating around the area they are getting a drink when it would be actually a crucial time for them to be watching the parking lot if they were truly providing counter surveillance so there was ambiguous conduct perhaps that they're floating around the area and no present but there's no evidence other than these statements of intent on their part of direct intent and these statements from two different people and one of them repeats several different times different things that we are going to do so it's all throughout his statements such as one reference that linked in this group and that is really the only evidence that the government had a trial that attributed level than the constitutional prohibition against shackling has no teeth whatsoever it instantly be circumvented by a district court judge taking measures to endeavor to prevent a jury from being able to perceive that all the defendants are shocking and this was the evidence that the jury saw anything of shackling here there is no evidence that the jury saw any of that irrelevant consideration it is germane to the prejudiced inquiry in this case but there are as this court has noted in its cases and as the u s supreme court has noted shock link is inherently prejudicial and it's inherently prejudicial not just because of the potential impact on the jury's perception of the defendants but on the defendant's ability to communicate and interact with counsel and a number of other considerations here in this case as one of the trial attorneys that at the very beginning of the trial when the judge was addressing this subject your honor it seems as though you are treating this as a foregone conclusion that these men need to be shackled and here there was absolutely no evidence of reading page one of the trial transcript when they when the parties are addressing in lemony matters and i think it's the second issue the judge brought up the hill some housekeeping matters in the second i mean history brought up those i've got some security concerns  it out well they were arrested with firearms and they were threatening to commit a robbery in the course of the underlying criminal conduct so i've got some security concerns we've got six defendant limited i guess space in the courtroom and i need to do something as a district court judge to secure the courtroom and so rather than load up the courtroom with marshals monster will need needs to be disruptive courtroom behavior scape attempts some type of outburst by the defendant credible threats by the defendant so we if we agree with you that it was unnecessary the government says in that regard as well we don't think that the jury saw this maybe they caught a glimpse of it but the government doesn't rule out that possibility and the government doesn't address the other possible types of prejudice starting point it's inherently prejudicial and secondly the government has the burden of proving that it is that it did not prejudice the defendants in this particular case and the government hasn't even started to meet that burden and finally  four minutes for you for your so i thank you council will hear from the government i can see the jury didn't see them now what is the need from your point of view the district court went into an assessment under the collins case the two part test of the compelling need and the less restrictive alternatives the district court put on the record these concerns about the number of defendants on trial there were six defendants on trial in a fairly small courtroom the number of course security personnel that would be required if there were no shackles or like restraints or any other type of restraints used would impact in his view the way the jurors might view these defendants who enjoy the presumption of innocence the district also noted that the defendant been arrested in association with three loaded handguns in connection with a major drug transaction so those were the things that the district court said started him on the road of considering every time someone is arrested with actual during trial you know your honor in particular a single defendant wouldn't raise those types of concerns i think here it was the confluence and mainly the fact that there were six defend here and the need for it that many personnel in the small space so what the judge tried to do was to consider different alternatives in it including the use of taser guns and additional courtroom personnel and decided on one that was  very limited in it's a restrictive notice now because the government's position is that was not carried to the judge followed the collins case did the two step process even if it is error there's there's no indication that any of the factors pain or that there was any difficulty communicating with counsel in fact the district court may be put on the record that he had put the like restraint on himself and made sure that there was sufficient movement that the defendant could move around could consult with counsel who was selection and the district court changed the plan so that each of the defense could be next to his attorney during jury selection and just decided on putting potential jurors not putting potential jurors in a couple of particular rows where they might an exception to the general rule that jurors are presumed to follow the instructions that are given them here there was a limiting instruction given the exception in britain according to  the marsh is for statements that on their face powerfully incriminate the defendant here when you read the statement each of the speaking defendants this is elias medina and lena individually the each of the speaking defendants starts out his statement to the undercover officer who is interviewing him after arrest by saying how he knows man well by how he was recruited by manual viii to come and do this and then the indication of we did this we planned this we did that the government argues that the natural construction here of the pronoun we is the speaking defendant and then well via there is no implication we would argue the national construction is man well by in myself and so in that way this case is much more close to richardson the marsh where the speaking defendant talked about how he was in a we in this context refers only to a maximum of two people we could refer to more people but the national construction is two people and under richardson we marched we just look at the confession we don't look at all of the other evidence in the that i and i did that allowing the intrepid defendants to argue well we weren't included in that statement therefore we weren't in this the government's argument here is that the jurors would still have to connect the intrepid defend the government put on that the intrepid defendants were participants in the in the criminal activity that there was any in call patients at all whatsoever possible and here the limited instruction was given by the court and so and in addition to that even if even if this was error this was a small part of the trial there was substantial evidence of the intrepid defense participation in the crime if the jurors believed that the intrepid defendants were at are a few points that i won't go through each of the pieces of evidence that the brief lays out which we believe under the case law should be considered in the reflected the testimony of several officers was that prior to the deal the dodge intrepid was seen driving through a shopping mall which was near the site of the eventual transaction  eventually stopping at a liquor store parking lot near the transaction the driving around aimlessly is counter to what the agents trained and experienced law enforcement agents on the scene believe the intrepid was doing they believe that the intrepid was conducting counter surveillance the driving was consistent with what they what they understood as the need for conducting counter surveillance would be dealing the need for counter surveillance is with respect to the drugs and the money that transaction was going to take place at the super eight and denny's parking  lot so there was no need for the intrepid to follow and have a gator maybe that maybe the drug traffickers lose lose the navigator but that's a much lower value than what they had planned on acquiring which was over two hundred thousand dollars worth of pseudoephedrine pills there's an argument that the defendants in the intrepid to the beverage break at a key time during the transaction actually is the facts bear out the transaction which was shown on videotape so the jury was  driving in the parking lot so the intrepid couldn't have been that far away it was not at the liquor store parking lot definitely and it could have been back far away it had to be very close to the transaction at the time it occurred in order for it to be there just site even if that were true it's not necessarily determinative with respect to the kind of surveillance purpose here because the defendants had and this goes more to the sufficiency claim this is similar similar issues with both fact they didn't know that the driver of the intrepid had a cell phone because one of the officers testified that he saw the driver of the intrepid on his cell phone at the time they passed through the parking lot and they knew that at least l fernandez had a cell phone because he used it along with the undercover to speak to a man well by the time that we know hernandez provided the lincoln navigator to the undercover to go fill with pseud the intrepid the day before if this is just some casual acquaintance waiting for a man well via to do some business and then heading north together then the fact that the officer saw the  and coming out of the parking lot where the lincoln navigator went following the meeting at the mexican restaurant where they set up the deal there's a definite connection here between the intrepid the navigator and the concorde the day before the deal and that was afternoon so the intrepid was available at that time i'd like to briefly address the claim in the brief that blakely and ambling should address that your honor the cocaine was not a stand alone transaction here the charge was the sample of cocaine is a very small amount sample of cocaine that was provided in the context of negotiations between on the one hand then well vi and we know hernandez and on the other hand style royalist acting undercover for a large pseudoephedrine transaction in which man well via had indicated that he could sell cocaine and there was an initial agreement at that time that part of the payment for the million plus pseudoephedrine pills would be and two kilograms of cocaine and so the sample was provided in that context in at the mexican restaurant when the deal was being negotiated so this was the count six that cocaine was all within the context of this deal that was being negotiated between man will buy and  time or something like that he did make that comment and the government argued that that showed knowledge on his part consistent and help tie that cocaine to the grams of cocaine that had been negotiated between the parties  the restaurant the cocaine dealer sort of like swept into the to the to the rest of the transaction yes the government has it's part and parcel of it because it was negotiated as part of that is no evidence in this record no testimony by anybody that these defendants actually did anything except drive around in a car and even if they knew what m l by was doing they would still not be guilty of a crime you can knowingly be near where someone else is committing a crime and be not guilty of a crime and that's the ninth circuit case u s versus herrera gonzales it's on page twenty eight of our brief and from pages twenty eight to thirty three of our brief we cite six cases where individuals were doing much more and the and the night circuit is that all that that they have that what they were doing was insufficient to show that they were members of a conspiracy and the fact that the conspiracy involved a conspiracy to manufacture fifty grams of meth there's no evidence whatsoever that these people ever agreed to do anything and there's no evidence that they actually ever did anything they just they are and if this if you can be convicted of this then anybody standing next to somebody committing a crime  mean that's you know they knew each other they were associates of each other yes there's no question about that it's just there's no evidence that these four did anything to participate in the conspiracy is incriminating on the toss about some incriminating think without reference to evidence outside the statement so that a statement that we were going to drop you we were going to rob you that's incriminating that's what you actually incriminating means so when the case was started by the government a lot know where the person talked about that he had loans for the defendant to make but that loans were not necessarily illegal the person i think was a loan officer similarly you have to know the facts outside the case to know that they were talking about illegal loans in o'connor another case study by the government said that the codefendant owed a debt to the speaker and there was no evidence in that statement that the debt would be paid with drug money that was a theory that was presented with evidence outside that statement so in this case these statements are facially incriminating does not mean that the person was named or specified that is explicitly not the rule under greater says maryland that you don't have to name the person can be basically susceptible of interpretation so that the government's statement that the natural construction is not is not the right standard it's because the person's existence referred to at all is there a possibility that someone could find that it refers to their existence and if there's a plural pronoun or an x or space it's the saying thank you thank you for their are thank you very much the case that just argued quite eloquently on both sides of my death will be submitted for decision and the court will adjourn and given that this is just number seventh we adjourn in the memory of our servicemen and the  fell in the over tax and december seventh forty one thank you