good afternoon in may please the court i wanted to up just briefly review some of the highlighted sacks here on march rd two thousand and eighteen agents with the a t f approached jose for a case any case similar to this one where a seasoned desist letter had been issued by the a t f and then there was a subsequent prosecution not was standing the fact that the person who signed the cease and desist letter complied with its terms i have not found one and i don't think the government has cited so i think basically ms d s was placed in a position where she's unique she as far as i can tell from the record here complied with everything the a t f i asked her to do and yet ended up getting prosecuted for crimes that different from other defendants because she does have this letter from the government where there's at least an implicit commitment that they're not going to prosecute or correct crimes that occurred prior to the date of the letter and and new cooperation well that's what i was about to get to your honor i don't think sylvia is the person who refused cooperation and i think she was in a position where she's married to this bill jose the agents wanted jose to participate in a sting and he's the one that backed out i'm not sure based on this record that sylvia had any indication that even jose was even asked to do this and she certainly wasn't asked by the a t f to personally participate in the sting and didn't refuse any requests that they may actually she had very little contact with them based on the room the review of the p s r and so i don't think that it's fair to say that she refused cooperation  that she did leave for mexico rather than getting involved in her rather than her husband getting involved in a sting operation he took the family to mexico and i think in this case  you know he was nervous from the very beginning he told the a t f that look i'm in a situation here where i'm afraid that i've been dealing with the cartel and that if i participate in this thing that my family's going to be hurt and at that point the a t f agents indicated that this might be a case where the witness protection program would be appropriate that's how dangerous this everyone thought this might be so you know i think you could argue that jose failed to cooperate but i don't think you can argue that sylvia did i think she just of went along with whatever jose told her to now i wanted to address if you peel waiver because that seems to be the government's primary point i do think the government more or less in its response indicated that it believes it could do exactly what happened here prosecute sylvia even for criminal accident occurred for but it seems to me the government's argument is that they're doing that because she didn't have a constitutional right not to cooperate with the government i disagree with that i think that a person certainly doesn't have a right to obstruct justice a person doesn't have a right to commit commit miss prison of a felony but if you're asked to cooperate in a sting operation you don't have to do that that you know they weren't under arrest here they weren't under indictment here they were given all season decisions later they had every expectation that they would be prosecuted for anything they had done before as long as they are going forward they they did not get council exception may be a political here and i am aware that the court rarely takes those up on direct appeal but here we have a situation where there was  official case that there was selective prosecution here which would have been an absolute defense to the prosecution so in my view that record shows at least some semblance of ineffective assistance the letter should have been at least read and in my judgment they should that the lawyer should have followed up in created a  trial lawyer in indicated that he didn't have it from the government the government indicated that it had produced it i don't know who i don't know one way or another what happened with respect to that but what i do know is that it's referenced in the pre sentence report and certainly should have been the problem or should have been aware of it prior to sentencing once made aware that i think selective prosecution less compelling argument then selective prosecution primarily because he's an addict the prosecution case is seemed to rise most of the time after the indictment has been filed and the defendant attempts to assert a procedural right so i thought i did i don't think it's as powerful as the selective prosecution claim particularly because this is a classic one as far as i can tell in under normal equal protection principles and there's at least one sort of u s supreme court case that says you don't have to stick you don't even have to show subjected illwill if there's a class of one  honor i think i think you're right in the sense that there's not a protected class here but i do think that she is singled out as one person in this class as far as i can got a single class a single person class and and that person shows that it's being treated in a discriminatory manner in the sense that treated differently from others that you don't even have to so show subjective ill will and there are many other cases that say that normal equal protection protection analysis is a clip of will to select the prosecution case so putting those together i think that there's a fairly powerful case for selective prosecution here and i know these are very rare and i know that the government does have you know some discretion some wide discretion in terms of who to prosecute but i think in this case it's pretty clear they singled her out of sylvia out primarily because jose didn't do what the government wanted jose to do their one subsection nine hundred and twenty two however it's pretty hard for me to see how status can be important knowledge with respect to status can be important for nine hundred and twenty two g but not for  authority that's controlling you if you can argue by analogy without extending it too much that that can also constitute plain error no i don't know i understand the court's point about ray hof i agree that the supreme court did signal that it wasn't making a decision beyond a six but i do think age i'm sorry nine hundred and twenty two ga but i do think here  appeal she is perfectly able to raise them later if she wants to in the context of a twenty to fifty five where a factual record can be made in pursuit as to the reasons why her lawyer didn't pursue these claims what is important here is that this lawyer who handled this case of the district court interdict her into a clear agreement reached a plea agreement with the government that resulted in multiple counts that had a larger statutory kennedy's attached to them being dismissed the government agreed to reduce her potential exposure from twenty five years down to five years and as part of the plea agreement the government agreed not to prosecute her for other  recent war there is nothing in this record that establishes why this case was brought as opposed to any case involving false statements to federal licensed firearms predictors so never came up as to why the government brought this case pearse's any other case but i do think the facts on that are important and and and i i don't agree that this case necessarily presents a compelling reason what we should not required license could result in a recommendation for criminal prosecution that's not a promise that we would never prosecute it's not a representation by the united states attorney's office for one and a t f agents certainly don't have the authority to make prosecutorial decisions in that context it's not a defense to the charge and it doesn't say anything about requiring cooperation to to obtain the benefits of that so it's not it's not immunity letter it's not something i proffer agreement that the government might enter into with an individual in this particular context people are doing the right an opportunity to cooperate in government investigations all the time some choose to do so some choose not to so there are benefits from doing so potential benefits from doing yes's made the choice here that instead of trying to cooperate with the government and in some fashion they chose to leave the country there are cases from other circuits around the country of referred to them in my briefs where there's no right under the constitution to refuse to cooperate in the constitutional protection against the dictum this only kicks in when the government acts in response to the exercise of protected rights and that's not what occurred in this particular case against him that's far cry from from the situation in this case and the supreme court's more recent discussions of blackledge and many get broached she and in class make it clear that the claims that survive have to be claims that can be decided on the existing record that's the language that the supreme court's used the existing record and as this is it there's argument is indicated there are numerous factual issues related  review st because it's not clear not because there's an error and i'll come back to that but it's not clear and obvious error because as the courts already pointed out supreme court said it's not taking a position on whether the five years limited it to five years and she had a promise from the government that it would not prosecute her for other conduct she was only charged with a couple of instances of making a false statement but the evidence that she needed to have a factual resume certainly borne out by the present reporters that she and her husband did this repeated over and over again approximately fifty times some of which she handled some of which he handled one hundred and sixty five the factual resume also explains that identifies all the dealerships and we're talking about places like academy sports and bass pro shop i mean big nationwide big includes a knowledge element in the statute already it includes that too to be guilty of that often you have to knowingly make the false statement it's not criminalizing people who accidentally d or isn one of that animating thread to the supreme court's decision and rahane was this idea that we applied and in a way to draw a line between criminal and on criminal conduct we separate people who violate the law knowingly and who i leave the law accidentally and that knowledge draws the line but the language of nine hundred and twenty two dollars a six includes the mens rea already as i've already noted the knowingly making the false read to cover the jurisdictional element of nine hundred and twenty two dollars which is the possession or the transportation of the firearm in interstate commerce it's never been held to require the government to prove to defend it knowing knows that the gun travel selective prosecution point sylvia dia as in jose diaz there they're not one in the same it's not that there are married couple but jose was the person dealing with the agents sylvia was simply caught the pre sentence report said she was called over to the group just to sign a letter and it's not as though she was there negotiating with a t f or that she even knew about this sting operation she there's no indication in this record that sylvia failed to cooperate with the a t f at all and she certainly complied with everything that was set out in the letter colleague on the issue of whether misty has failed to cooperate she did not fail to cooperate jose you could make an argument but even jose all he did he certainly cooperated he gave them tons of information the only thing he barked at was getting involved in their sting operation and they never told them hey you're going to be indicted if you don't do this or you're we're going to prosecute you and your wife if you don't do this that's not in this record at all sylvia certainly never had a choice there's no indication here that she had a choice to refuse to cooperate with the government or that she even knew that the government oh your honor i think that number one i think if you if you if you want additional information about this claim i would hope that the court would vacate this conviction and remanded for findings on this issue rather than center do  a point of counsel your own and you know i really think there's a side of the jones cases i believe is it's the jones case that indicated if there is a requirement for additional information on an ineffective assistance argument that you can remove you can vacate and remain and for further findings on that issue and that certainly would be appropriate here i think  the other thing is i would really like to get her out on on on bail pending pending that hearing because she's in she's got covert now she's in a bryant the camp  down there in bryant texas and you know suffering quite a bit and i think she's got a very valid selective prosecution argument that would have barred this prosecution so for those reasons i would hope the court would seriously consider vacating the judgment here and remanded it if it if it feels like we need to have additional information if there's any