it's a pleasure to be here again that the government had proven to conspiracies their argument it found that this particular interlocutory appeal was not a frivolous issue and it said this is a serious issue i don't think it's clear cut and mistresses can should have an a showing of a double jeopardy violation this is and that means that the government then carries the burden of persuasion and why is that important it's important in this case because as i point out in the opening brief the court when the court made its rules on the five factor analysis and other factors really made it based on a burden allocation as opposed to what i would say would be the correct allegation is that the government proved to conspiracies at this point because the defendant across the evidence agree very to get into the zone where the government has the burden of proof and and so that is that was an error and that's why we are arguing that during and none of these people are arrested when the government argues that the break point the fracture point between the two conspiracies is the two conspiracies why don't you tell us give us the worst fact case against it before they get you and show that that even the worst facts show the only one point out that the first shipment came in through fed ex boxes the second one went freight from the first one was from holland to the united states the other one was about been conspiracies that there can be some groups and the government has alleged that the crew yeah the four or five alleged passengers of ecstasy from europe through korea his involvement in korea shipments none of which by the way are charged in the two thousand and five not so so career is out there but in terms of what happened in the year two thousand if we look at the indictment the major part of the indictment in two thousand is the july shipment that is the defendant is clearly involved or not because they have him on tape in june and july discussing with him or if they're going to go about it the government also concedes that he was involved in cocaine shipments in the in february in the spring of the year two thousand so mean that because it was not involved in those four or five shipments were none of which are alleged in the two thousand and that means that he wasn't part of the greater conspiracy that was ongoing just because just because some of i look at the supreme court case law that says the predicate offense to establish pattern of drug violations as one of the elements for c c can include prior conspiracy convictions for which the defendant has already been convicted and as i understand in reading the c c each cow he is actually not charged with the conspiracy that he was convicted on  what you call the one nine hundred ninety nine conspiracy yes he's charged with the two thousand and it's fair so why is it improper for the government to proceed to trial at least on the c c could be convicted of both but i can't be sentenced but i think in this case where you have the conspiracy has already been charged proven and he's been sentenced and then you're charging him with the same conspiracy both in terms of any forty six factor analysis our position is that this should not go to a jury because of jeopardy being established by the fact that there is one conspiracy in addition they're not going to make any findings on korea because ecstasy which would then be brought back and then developed a way to bring back the ecstasy that was better than just having people slugger back on their person he would have it shipped in federal express shipments from your to los angeles then there saying there was a break here and we've cracked went off on our own and we set up this whole new way i think porting ecstasy using the career contact and making them look like making the s p look like these are large defense in terms of what their easy answer to any of these allegations that's correct and i think very difficult than it seems to me for an appellate court to look at this record and make any kind of the conclusive factual the court's findings the court's findings were determined by not requiring the government to prove based on the factor analysis that there were two conspiracies if one looks at it and i  persuasion is what caused the court to find the factors as insufficiently demonstrating to conspiracist and it was and our position is that given the court's finding a close case  of her order in saying i'm satisfied based on the showing that the government has made that there could be to his fairness here and i'm going to allow you to remove your objection at the close of presumably i guess on that one of the twenty nine motion at the close of the government's case and she you know you're not being prejudiced to the attic stand in that you can renew the motion well i think that tantamount to her saying i am persuaded at this conspiracy that the burden of persuasion should be on the government on the resolution of the pakistan you want to go where no panel of this court has gone before which is to say she must in  hearing at which she must make finding fact based on the proffer by the government that there are two it's that's what i hear you say i'm asking that the court make the same decision that it made below with an understanding that under bendis and flick that the fandom has crossed the evidence tree root a kind of showing of promise facing one frivolous showing and given that the burden of persuasion in resolving those five factors is on