it please the court robert culp assigned counsel for the apollo edmund months log i was not involved in the trial proceedings mr months lagi a native of the tiny country of suriname in south america serving one hundred thirty five months sentence for cocaine importation conspiracy following a trial and sentencing he does not understand let alone considered to have been fair he had never been to the united states in a serving in rural pennsylvania without contact with family and friends and following two years in a prison awaiting extradition in trinidad which the district court found to be psychologically damaging is fair to say that it was referenced in the proceedings below that he's in terms of that psychological damage he's paranoid he does not trust courts he does not trust the government doesn't trust fellow prisoners guards he doesn't trust assign counsel it's it's in the  record i'm going to go a little bit out of order and touch on a sentencing issue first and then work my way back to one or more of the fair trial issues i've raised i realise that on pretty much every issue i've raised the burden is as difficult to satisfy on an appeal on the sentencing the point i wanted to focus on is the the inconsistency in the judges judge nathan's rationale in issuing the sentence she set forth sort of a comparison of my client in the code to find that who as you know was charged with much more serious offenses including abetting terrorism and she said well he got about one hundred thirty five months for the drug aspect of what he was charged with he was previously sentenced and since he pled guilty even though he was much more of a leader in this but since he pled guilty hundred thirty five it's kind of a fair comparison because my client that went to trial and under the guidelines there is a calculable benefit by pleading guilty right exactly exactly so she went there and my oh my it issue is with the next point that's where he is that's where she goes to my clients two years in trinidad awaiting extradition she says i do also take into account consistent with thirty five fifty three the harshness of the time he spent in prison in trinidad pretrial it does appear to have affected his mental state and mental well being has added to a sense of distrust for the process here and some paranoia that has manifested itself today he had made a statement to her i did not and she did but she did and that's what i'm asking you to remain and to ask her to clarify that because she just got done saying ok these guys it's fair to put them at about one thirty five then she takes this into account and then there's no benefit there's no i would have expected if she was taken into account for her to say well that's based on this treatment and psychological damage in trinidad instead of one thirty five all go down she couldn't go down below one twenty which was the mandatory minimum but some benefit from that and i my suggestion here is that she's being inconsistent and i know that asking the court to and on the basis of this kind of inconsistency is not your inclination but the fact that she considered it doesn't mean that she gave it much weight or it doesn't mean that she has to articulate what the weight was right well to my mind she she's giving it away she's not saying that well that doesn't matter she's saying i'm i'm considering it i'm i'm finding it this is something that was pretty i'm sorry i  just yeah to my mind she's she's doing more than just considering the lawyers arguments about this which were presented in some detail about injuries to him in trinidad and so forth and she is saying she's saying i'm going to take that into consideration i do find that this man has been psychologically scarred that's my phrase and then i think it mary and he would know apparently and that's i know the government is saying that as well i think we should find out i think we should send it back to her and say you said you were taking this into consideration and yet there was no impact on the sentence are you suggesting she was confused and didn't realize she was doing that are you suggesting that it was this and i'm suggesting you she read it the same way as she starts off at one thirty five says the here's this important factor and i'm finding that yes you were psychologically scarred in trinidad and then let me look judges consider all sorts of things and they say i've considered the fact that you're a great father and you coach little league and i thought about that and i think that's important but the judge doesn't have to say and that's worth three months and it's factored into my sentence that we don't require that cings and on that's i did reject i mean i have to disagree that it's itemization or being counting or anything like that i think is something very important she said that the guy is is mentally unstable as a result of this training to suggest that she didn't consider that when she came up with the one thirty five here's here's my number one thirty five and these are the things that you have now if she had come up with one thirty five after these remarks i would understand that but she set this baseline where i think it makes sense to put him on the same level as the codefendant one page and then transfer they have to pay it's a two forty two of my appendix your honor it starts up at the it's a four page appendix and starts up towards the top  try to answer i was going to move on to something else that the are you ever made the point of the gun has meant that she did she did say elsewhere in the in the sentencing that regardless of that issue which i think i i do have issues with the gun and hanson and i tried to point that out but she did say elsewhere that that that she would have given the same sentence regardless of the gun unhandsome an issue and the government pointed that out in there so if i could move on to another i'm running out of time and probably belabor that prior point too much on the on the fair trial points i do and i again i recognize the burden here because there was no objection at at the trial below but i do want to emphasize huge number of tapes and i've got an issue with the tapes that i've briefed about how they came in but i'm not going to raise that right now but the you've got two people who  confidential witnesses who recorded the meeting after meeting and and and only one of them testified and i am suggesting that that this is a confrontation clause for the second gentleman his his nickname was taco for him not to have have testified was a confrontation clause violation in the crawford just a sort of a in the last part of you know here's in the second volume of my appendix is is these tapes i tried to put them all in the ones that were the transcripts that were admitted every time you should have testified about what would have had to testify about the statements he should have had he should have been been put in the witness chair to be confronted by  an attorney now i realize that and the government cites the the burden case which held interpretating some in the sag case before that that even though  in these situations these people do know that they're creating evidence for a case so in that sense i would argue under under crawford it's it's it's generating testimony for trial that i do recognize the court held in burden that on the facts of that case and that there is no confrontation clause violation i'm suggesting here that burden should be distinguished because byrd involved one or two statements this is like this gentleman taco and i put some quotes into the brief i realize the government is saying that none of those are for the truth that they're all part of a drug conspiracy and and that therefore it's not hearsay he's in and he's an inf decision has said that that at least on the facts of the burden case they said you have to take each case on its own facts that that's not a confrontation clause violation that the few statements that were introduced and burden but this is this is goes on and on and on this guy talk i was talking about all sorts of things planes and drugs and money and even if it's all part of a sting i think he should be required to take the witness stand and to be confronted by the witness  that's that's my argument there thank you save some time the morning may please the court this is the united states attorney michael awkward for the appellee of the united states of america and i'm happy to address the appellant's issues and sort of the reverse order in which they're raised on oral argument but i'm also happy to take direction from the sylvan you both noted those statements were not offered for the truth for that reason they're not hearsay for that reason they're also not testimonial and there's no crawford problem which this context for the admissible statements of the defendant and his coconspirators on those tapes and for that reason it's hard to imagine what the point of cross examination of a confidential source about statements that were made that were not intended to be offered for their tru anyway so yes talk i think would acknowledge on cross examination that he was not in fact a mexican cartel member i think that makes the point moving to the substantive reasonable notice of the sentence i think the appellant has focused on a couple of factors that judge nathan considered in the course of formulating the sentence that was imposed by judge nathan considered a lot of other factors as well and i think that it will straights why why the argument on appeal is on sound if you look at the appendix on pages two hundred forty one to two hundred forty two just nathan also recites other factors considered including the seriousness and nature of the offense which involved high level government corruption in a south american country it involved mr his father was and is the sitting president of the country of cern co conspirator do you know be tears held himself out as the head of the counterterrorism unit of that country there is a lot of discussion on the recordings about mr months logs that mr b terraces access to corrupt officials at the airport to move volumes of cocaine through that airport both on commercial airlines and on private planes just nathan noted the constant presence of weapons throughout the course of the negotiations i want to talk with you about that seems like you know if i do a drug dealer police plaza there can be a lot of weapons around but it's not clear that they're connected to the offense but what about these weapons were connected to this offense i didn't see in your brief  see in the appendix any suggestion that these were designed to intimidate or to make people think twice before they double crossed the organization so what's the connection between the guns and the drug activity i think the distinction is between doing a deal at police plaza and the chief of police doing a deal at police plaza in his office with his service pistol present and i'll just note a couple of different ways in which weapons were a security force well you can have legitimate purposes for carrying a firearm but when you bring that firearm to a drug negotiation at that point under the guidelines you have to find that it's clearly and probable that it's connected to the violence in the burden is not  presence and then it's the defendant's burden i guess to establish that it's not connected right so i'd like to lay out all the ways in which the guns are a part of the offense and then talk about how that connects to the offense yes so there's mr b tears it's personal caring of a firearm there's the rocket launcher we submit absolutely we said absolutely it was stored in a safe along with a brick of cocaine they were displayed to the confidential sources at the same time you're arguing is that the rocket launcher was designed to protect the kilo in the safe it's designed to show mr b terraces in this for months logs capacity their power their ability to deal with a what they understood to be a high level mexican cartel what's your basis for saying mean it might be true it might be just this is a neat gadget that i got at a garage sale and i want to put it in my safe signal and pinches it it could have been but i don't i think the way they haven't is that it was designed to intimidate with their testimony that the what the informants thought when it was shown i think the circumstances the object of readily observable circumstances show what the what the intended purpose was and i think it was not splayed in the way he might say can actually carry out the drug deal that they purport to be able to carry it out with the confidential sources there's the circumstance that they believe they're dealing with a high level mexican cartel there's been discussion about whether mr b tears can supply weapons to the cartel as well as to another criminal organization there's been discussion about whether they can protect these kilos as they go through the airport there's been discussions about competitors and when you put all that together i think the clear inference is mr b saying i'm a powerful person and suriname i'm the head of the counterterrorism unit i have rocket propelled grenades i have kilos of cocaine that i'm not afraid to store in a safe in my home office we're going to do this deal with you and we are powerful reliable partners and we think that those circumstances are clearly evident from the evidence and judge nathan said he would have done it anyway and then that's correct as nathan found that it applied and then also stated that she would impose the same very briefly back on the confrontation clause issue it's interesting to note that the jury was never told that all of these statements from this gentleman talk of that there they were never told the  no objection it's a plain error if you think it's necessary i mean the jury was laboring under the misimpression that taco was in fact actually a mexican cartel member no understood that this well i think if that's the theory of  admissibility and of course these were not coconspirator statements because he's a he's cooperated with the government also so i think if that's the theory of a disability i'm just saying the jury was never told that that it's for the impact on the sentencing issues that you are just discussing  i just wanted to point out that the government's own witness said that sometimes it's called rocket launcher sometimes it's called grenade launcher i'm a little confused myself but it says had nothing to do with this this drug deal a quote that my briefer page forty nine of the judge if they joked around or on the guns that everybody around every this is i think the judges folks on the security detail you're right and the government says well the government organization or stood their brief was well that's it's the gun and handsome and in my view but i do have to say the government is right that the judge did say that it didn't matter i can't run away from that i mean i i try to explain in my reply brief that it's not a very detailed explanation as the supreme court had been talking about when you get these cases where the judge says would have given us the same sentence but i have to acknowledge that i still asked the court to consider remaining for clarification on on