united states and honorable court morning we have four years this morning and counsel were familiar with your cases i've read your briefs already cited in your briefs and at least portions of the record so in the limited time available to you this morning you should feel free to go straight to the heart of your argument if you're answering a question from the court when your when the court denied the defendant the opportunity to have an entrapment instruction presented to the jury the standard for taming that as the instruction in travis strikes is extremely slight that is some evidence must be shown for this court has also said that in order to have an instruction presented to the jury relating to the theory of defense if there is any foundation in the evidence even though the evidence may be weak insufficient a consistent or doubtful credibility then that a structure should be given and that this circuit united they st is lively nine hundred and eighty six and this particular case whenever you talk about entrapment defense obviously is a very fast intensive canons were jokers and they had no drugs that they were not even entitled to be continued to be investigated and they want to nothing to do with them and i think that's going to prove extremely important fact when we find out later in the facts that really what we have here is the tail wagging the dog because after the d a wanted nothing to do with him because they were jokers and they didn't know anything about what they were trying to do the confidential informant then takes this case to the da on his own based on the fact that this is only way of making money and this is what he does for a living so he then goes to the a t f and says i believe that  want to do a robbery that was his summation that was his get his belief he then started contacting canon on the phone and each time he contacts can and he says in his introduction to the recorded conversation this is a set up for robbery what he's saying that he never said one word to canon about the fact that he wanted to do a fast house robbery he just wanted to set him up so that later on when he met with a t f they would spring it on can and this is important because a lot of the cases that the defense that the government cites passed that house robberies where in fact the people they were being targeted were already doing that house robbery are ready doing home invasion robberies and so when they presented the stats house robberies to them they had a basis to do that they weren't jets willy nilly just going to poor people with an opportunity to make a lot of money they went to people who are already doing that kind of thing it's a sad market as i can ask you a question  just the government do anything more than provide an opportunity to agree to rob a stash ou well let me answer this way they offer them an agreement to rob a fess up but they also gave them the logistics on how to do it they offered them transportation on how to get there they set up a scenario where they would have to bring guns because they told me there was one guy with a with a gun meaning you need to get a gun in order to do this so what i'm saying is there was no  manipulation that isn't right that is correct but the standard for that type of thing is like i think the case law says there has to be some i think the language that is you so we're not talking about a lot of evidence of that we're talking once again about a more than a scintilla of evidence that they did some type of fly corage and that would cause a defendant to do that and i'm what i'm saying is if you look at the totality such as you can make eight hundred thousand dollars if you do this there's only one guy with a gun in other words and will give you transportation when you pull all of these things together combine it with the fact that these two gentlemen don't do this kind of thing they had no evidence that they did this kind of thing then what we really have is la are minorities that led me to do an examination of the southern district of florida where for ten years there were twenty five staff house robberies and eighty seven defendants were arrested and all of them were people of color and my point a lesser standard then the armstrong standard when you're talking about selective enforcement as opposed to selective prosecution and that's what i'm saying here you should not require the armstrong standard but a lower standard for selective enforcement thank you oh i guess the best way to start is in reverse order which i have prior least least ok well st of all i'd like to argue the outrageous government conduct and both the government and the defense usually always fall back on the rough cold case this is a case that should shock the conscience of any judge and there was a pretrial motion that was addressed to this it was a motion to dismiss based on outrageous governmental conduct at docket number thirty eight and the question becomes whether it was so grossly shocking and so outrageous as to violate the universal sense of justice now in this case you know that the that this was a fake stash house robberies there was never any cocaine it was never really any stash house  the guns involved were brought at the government's insistence or at least in their wording that they should that they should bring a beautician i think that he comments made during trial was predisposition on the part of the defendants to engage in illegal drug transactions and that when when the government suggested this idea of a stash outs robbery  that you're correct in that but the flipside of that is that that's what makes this outrageous conduct is that the government was so overtly and involved in this case and took part in every part of  this of this offense these were all though mister cannon might have had a predisposition to engage in a drug deal he was there was no evidence in this record that he was predisposed to engage in a staff in a stash house ripped off or ever to engage in an eighteen he love deal in fact the agent said that they always thought he was lying about having a large quantity of  so he was basically entrapped into committing a larger amount of possession with intent to distribute and he normally would of and the outrageous conduct these the entrapment goes also into a sentencing entrapment argument that i raised in the british east that the government basically manipulated the amount of alleged cocaine that was never there they could have said it was a good zillion tons they could have said it looked so the government was totally in control of that it's our contention under the case law has developed and although it's mostly supreme court case law and it is very fact intense as mister sam  right and they which gun was brought there one of the a case i believe it was the rifle and and but the government didn't provide the rifle the defendant had a k forty seven dollars is that correct us let me just focus you sort of with a laser beam on the thing that bothers you it's difficult i'd like you to comment on this it's difficult for me to see how a jury would have concluded that the defendants were guilty of using a firearm during and then further and or the underlying hobbs act conspiracy predicate with out at the same time also concluding that they a firearm during and in furtherance of the drug conspiracy is there any way to tease those two out or do we have a case where they are so half of the united states the defendants here have identified no factors distinguishing this case from the long line of stash house challenges that this court has rejected time and time again your honor should affirm the defendant's convictions and  predicate and given the factually coextensive nature of the two conspiracies here at the answer to that question is i'm out of the yes in support i would direct your honour's ironically to the defendant's own brief and specifically to the multiplicity argument that mister holton makes in his brief now we explain in our brief that that argument fails as a matter of law under block berger but it's hard to argue with the factual predicates of that argument i'm happy to entertain any other questions on that issue if there are no move on to the entrapment question here the defendants can point to no  any effort on the government's part to push a plan on unwilling participants and especially relevant here is the testimony of the you see who told the jury that consistent with his practice in all of his investigations he made a conscious effort to give the defendants multiple ways out in this case he said is it is this something you're sure you want to do if you said that at least three or four times in the st three push a plan onto unwilling participants in this case essentially what the defendants argue with that every stash out conspiracy case constitutes grounds for an entrapment defense and as we know from the authorities that we cited in our brief that simply isn't the case under th circuit law i think your honor is understand our argument with respect to discovery the defendants point to no similarly situated  suspects outside their protected class and under that standard their claim necessarily fails our position is that the defendants never squarely raised selective enforcement as an alternative theory into th believe the introduction both to the initial discovery motion and the amended discovery motion specifically referred to i guess i should say specifically used the u s attorney's office for the southern district of florida of selectively prosecuting  or the supreme court law i'm happy to address any other questions that your honour's asking just marcus i have a question about this idea of sentencing and traficant i know that our law has not recognized that  there's something about it at least theoretically that's troubling to me and i'd like to raise it with you and see your counsel on it with the government basically creates the opportunity to orchestrate a drug conspiracy the government would be free to basically almost any amount of drugs that each has to do so let's suppose they can to really manipulate what the sentence will be by saying ok we're going to rob a stash out and we know that the stash house has five hundred kilograms the highest purity of cocaine hydrochloride and suddenly when they comes to sentencing the descendants are tagged with robbing a stash house with the idea of possessing with and to describe you five hundred keys of cocaine you can really think your honor it's worth pointing out that in this case the the amount that was proposed the defendants was between ten and twenty kilograms so we're not talking about hundreds and the other problem assuming that the defense even exists in applying it in this case is that it presupposes the existence of entrapment or the at least the potential for entrapment instruction which people stablished simply doesn't apply here and so you know although you know perhaps there could be a case that might shock the conscience in that respect it certainly wouldn't be this case in this case wouldn't be one honor so it's the best of my recollection mister cannon brought a rifle to the scene and mister holton brought a pistol and it was their own guns they certainly weren't the government's guns and do we know yes i believe that's right well you're mad automatic were they not they were fully automatic weapons and and were they loaded i don't recall up the top of my head i'm it be fair and accurate to say that the defendant and and the whole rock the firearms at the scene they were in their car they provided the weapons that the group provided weapons and three people ok and we guys to the discovery issue i wanted to point out one of the government's case is united states versus here that he cited where  in that case the defendants were known roberts who that were doing home and they home invasions and they were approached with the things that's how they think situation and those defendants asked similar to what i asked for manual released to the defense one of the pages that gave d the policies and directives of the a t f and said that the only way the defense can gather this information was through this i never got a hearing on my discovery motion it was just summarily denied no hearing on either whether was a selective prosecution selective enforcement what i can get any evidence whatsoever to but just what i had already found that something is sentencing entrapment i differ with the government i don't believe that the sentencing entrapment issue is tied into the original entrapment defer with even if entrapment is not proven you are at this juncture in life in light of the standing case law yes sir and the only other question that i had in that regard is your mouth that the government threw out was not several one hundred eleven finishing statement the government by the use of this case didn't take anything any drugs off the street on business case or hundreds of other fake stash houses around the country that's the problem with creating crime the government is not making the country safer or reducing the actual flow of drugs but for the government's actions thanks to stay fake stash houses would still be fake nonexistent drugs with so be nonexistent and the fictional armed guards would still be fictional the government created this case and it should be overturned thank you thank you mister president you know we have your case