arguments that are frequently made but have been unsuccessful and i think the biggest thing is the government's claim that they were investigating a criminal enterprise that was already in existence this in a low a cartel operation rush hour the individual named heim a washington crew says who then that there was there was at that time an existing criminal organization we have no idea the only evidence that this organization was in existence is the testimony of agent r and the problem is first of all the judge as the district court judge does not make any findings of fact but if we look at all of the sentencing documents that were filed in mr c it was the government's argument that this jaime washington crew has referred them to mr cowen in amsterdam but if we look at all of the documents that were filed in mr cohen sentencing case there's not one mention of operation rush hour heim in washington crucis the mexican drug cartels in a lower drug and the allegation that mr cohen was involved in money laundering was all regarding europe and it turns out that mr poland was a serious alcoholic with money problems there's absolutely nothing to link it up to the government's original contention and the reason why we can't accept the government's i mean there's a serious contradiction here i mean if we send it back you know under the bogart case for findings of fact i mean it may well be that the government is going to be able to prove its allegation but right now we can't say that and i think it's important so let me let me ask you which would specific facts do you think that the judge should have found did not find i think that the court should have specifically found whether or not this allegation by the government that they were involved in operation rush hour one and two that they were investigating the mexican arsenal of a drug cartel that led them to this do you mean a finding that it's not true or that it is true and it is true that the government's argument is true yes there is the only thing that's in the record as mr rowhouses testimony agent will have there's not enough now it's not and i'll tell you that were involved in the local officers testify that they deliberately set mr geringer there to pick up the dump so they could arrest him and there is a dispute as to whether or not mr geringer would have ever involved himself in drug dealing he did admit that he was moving paper around but not drugs and there is the problem about the text message on the blackberry is a government agency mr estrada i believe it was a police officer testified before the grand jury and at mr masteries trial that mr guarantor is the one who sent the text message and it turned out that that was not true and then when mr guarantee it was going to go to trial and his lawyer wanted to test the black berry which had been in government custody the excuse me the text message mysteriously disappeared now the government conceded that  the testimony in the earlier proceedings had been in error and they admitted that mr geringer is not the one who sent the text message but the you know there's it's all very suspicious that the district court made a specific finding that there was no bad faith correct i think what the district court found was that the evidence was basically an echo poise of the government the defense it was the defense could not prove bad faith let's put it that way was as absolutely a mistake or that it was just disappeared and so as long as the government was willing to concede and testify at the mr guaranties own trial that in fact the text message had been sent by matt sorry there really wasn't a problem i think with the biggest thing we come back to is after mr geringer is convicted all the stuff regarding mr cohen appears to contradict their initial argument that they were just they just happened upon this by investigating something else and that's critical to an outrageous conduct argument and that's why under bogart this court can't resolve these contradictions it should be sent back for the district court to make a fight for evidentiary hearing and for the district court to make findings of fact i think that's very critical  the other thing that the government pointed out in their army was that the district court judge had presided over mr masteries trial and so it was aware of the facts but mr mattress trial was not about or outrageous conduct motion and of fame evidence regarding this operation rush hour was the same testimony that they gave at that trial that nothing came out about the truth or it let me put it this way about the what would ultimately become the allegations regarding mr cohen and that i think is critical you're down to just a little over two minutes which i like to save the remaining time i would love to thank you so much with respect to the question of the court's factual findings it's true that in its pacific decision regarding the outrageous conduct motion the court referred to its familiarity with the facts of the case but the court made other findings during the course of this case that all bear on the decision to reject defendant outrageous conduct motion which ultimately had absolutely no basis in fact and most importantly right now as your honour's already noted the court rejected defendant's claim that there were any issues regarding the text message that bore on misconduct the court made a very clear finding there was no evidence of bad faith and with respect to the fantastical allegation that the origins of the case were fabricated not only was there agent rojas as testimony but at both trials and in a discovery motion and in response to the misconduct motion the government offered text message exchanges between the undercover and yaron cohen and moshe masri all of which were consistent with the narrative that have been presented as well as recorded conversations between these people and all of that was consistent with the government's characterization of the origins of the investigation and in response to defendant's discovery motion the court actually made a finding that it was perfectly credible that while investigating drug dealers undercover agents would come across an organization a money launderers and that a money launderer based in amsterdam might know other money launderers there was never any contrary evidence presented by the defense no testimony to the contrary defendant g challenge any of the things that are now coming up on appeal and so quite frankly that would be somewhat similar to the bogart decision saying that if it's undisputed it's not disputed we don't have three man  findings right exactly your honor and ask you question the guesser forget about whether or not the judge made findings ok if in fact the judge's decision is supported by the record ok should we not of there's any any grounds for affirming by looking at the record absolutely you should the record this court can affirm on the grounds of anything in the record there is a very fulsome record in this particular case and review in motions to dismiss are in fact is in fact a nova so this court does have plenty of basis to affirm the court's decision to reject the motion including evidence from the trials  the motions all of which supports the fact that the story that the government presented is supported by evidence i suppose another question is even if this were actually a deliberate operation to target motion monetary given that motion mon was in fact a criminal it's not clear why that would be misconduct there is never been any dispute that defendant geringer was brought into this case by motion monterey and not personally targeted by the government nor is there ever been any dispute that he voluntarily continued to meet with the undercovers and engaged in an assortment of money laundering deals counsel right now also raises the specter of entrapment but clearly that was rejected by the jury at the trial and with respect to the court and the findings in the record before this court this court has not only the trial testimony put also the actual text message where defendant character first brought up the topic of a one hundred kil cocaine deal which was the basis for his conspiracy charge as well as the transcript from the recorded meeting on may second between defendants masry in character and the undercovers were geringer again says that he wanted to buy one hundred kilograms of cocaine on credit that evidence couldn't is not in dispute and could not be clear at to indicate that there was no misconduct here this was a legitimate investigation into an existing operation and the undercovers merely presented the defendants with opportunities to commit crimes that they were already engaged in well then i think the guy there's one question that comes to mind is why would the government mis represent operation rush hour and a washington cruises when in the cohen sentencing documents they don't make any mention of it you know and so the issue here is under the black factor the six factor which is the government's necessity for beginning to investigate i  think that's critical and there should be findings of fact because the record now is contradictory and this is clearly a enterprise or a scheme that was engineered by the government from start to finish and there is nothing illegal about how while the transfers of goes on all over the middle east you know unless you know of course in terms of money laundering that the money is coming from illegal proceeds but this failure to resolve this fact is critical in this particular case thank you i thank you very much counsel the matter submit it for a decision