may to please the court counsel i am patrick kern representing the united states government and i would like to set aside three minutes for a little out of my twenty counsel for you get into the details of the argument currently out of prison three of the pollies are currently out of custody and i'm going to assume that they were deported back to colombia for simplicity's sake the one that is still in custody is gamble of victoria he is not in custody on this case he was released and again i'm going to assume he was deported back to colombia the sense that time he's been rearrested in another case very similar to this one on a boat transporting cocaine in the ocean and is in custody in the middle district of florida tampa bay facing the same charges he faced in this case what impact if any does the fact that these two prison sentences have been served in these folks have been at least as to this case been released have upon our deliberations today well they did they did receive a four year conditional release after they've served their sentences again both victoria is in the united states if soccer a case where and i don't think we're alone it was assumed that the safety valve did apply in this case kind of case and now the government is saying no no time out there's no direct i haven't found any direct authority that it does but there sure are a lot of courts love and circuit included discord and nobody the government can raise the argument you're making here why is that the argue for applying the rule of lenity and certainly impeaching the notion that it's a clear clear under the statute language is not clear under the statute that the safety valve doesn't like here and this part of addressing that i'm just curious why the government is anxious to remove the safety valve option because the application of the title forty six crime to the safety valve and the government has accepted application of it in cases and the government such as this case is objective tabla cation have it what other cases besides this one in th that's puzzling counsel usually you're saying that i mean as i look at the statute it's pretty clear i don't think it is ambiguous but you're saying that the government has previously is as acquiesced in the application the safety valves of this offense and yet you're saying that in this case and in some other cases i mean you can't have it both ways which is that the government's the government's position is that it is not ambiguous that does not apply defense counsel that they thought safety valve would apply it had different understanding cers of just cutting some slack for defendants that congress doesn't want you to cut them slack or because they're giving you information you're willing to pay for my belief this is that it's a misunderstanding of the application of a statute i've not sat down with as a usas and say give me your full reasoning as to why you made those statements i think that nobody actually sat down  five different sections or six or seven sections there can be a break against a mandatory minimum and the offense in this case is not one of the listed sections so the safety valve doesn't apply correct the the argument the other way if i understand it is one of the listed sections is twenty one u s c nine sixty that doesn't actually make something of crime it says the penalties for a whole bunch of crimes should be such and such that doesn't list the defendant's crime either but the defendant's statute of their crime of conviction says sentence this one just like a nine sixty if i got this right so far yes so if it says sentences like a nine sixty and thirty five fifty three after as for nine sixty you can give him the press because if you apply that patient have a plain meaning interpretation of the statute congress has had opportunities in the past  to talk specifically about the words of the statute i mean we all know the shibboleths like plain meaning just work we through the grammar of these difficult statutes well i believe that if congress had intended nine hundred three to be part of a safety it would have been included either under thirty five fifty three or nine sixty there's other statutes you don't think congress would like or stood as apparently a whole bunch of people including the government that  accordance with or that i think they also could say then accordance with thirty five fifty three and they chose not to do that so the article the argument then is basically they've written a careful list here and  isn't in the list correct and they do that for other statutes they did it for age sixty within a thousand feet of schools to concoct in but always what do we do with that and judge fisher's concern at that gee when you're revising really complicated statutes it's hard to think of everything and if you take one and you say sentences like another that should be enough to mean like another in all respects i think it's the history on this statute that congress has not gone back and included under thirty five fifty three or nine sixty that indicates that they don't intend that occasion of the safety valve and i don't think it's a why would congress try bootstrap that statute into the safety valve when they could have just as easily at some point over the course of the years included it in the safety valve the thrust of my that's why maybe you could address from a government standpoint why congress uses a safety valve gives  to the government basically as a bargaining chip what is it so why are you fighting to keep it out of this subset of the drug trafficking laws i'm not certain that the application of the safety  counsel limit the questions in a steak evolve interview saying they only have to tell you about you know what they know about the crime not you know other crimes that they may know of occurred i think in this instance congress the used nineteen zero three some very serious crime more so than eight forty one or nine fifty five and therefore chose not to include in the safety valve by not listening to thirty five thirty three not including as a statute under nine sixty your quiver so you won't run out of time and if i understand it correctly even if you lose on whether the safety valve applies at all you have an argument that it shouldn't have applied here because they didn't truthfully provide to the government all information they falsely provided to the government some information right now that rhys's two questions in my mind one is how free are we to substitute our judgment for the trial judges and the second is how free is the trial judge to substitute her judgment for the jurors that i thought the jury thought these guys were a bunch of liars based on the instructions but you may have to take me through the instructions to prove that well in that cell that it that is the argument we made at the just a court i want to make on this level regarding the defendants and their considering truthful ness as to these defendants and now let me ask you something about what looks like the critical liar truth to me in the case they say the only reason we did it is the bad guys told us they'd kill our families if we didn't coercion and the way i remember the general scheme of things is once the defendant has some evidence like for entrapment or some other defense then they get an instruction that the government has to prove beyond a reasonable doubt that they weren't entrapped is that the way it worked out coercion to the government have to prove beyond a reasonable doubt that they were not coerced that gives you that is correct that was an instruction so the jury concluded beyond a reasonable doubt that they were not coerced correct and that means that the jury says beyond a reasonable doubt their lawyer when they say they were and the judge says no they're not they're telling the truth when they say they were co essence that's what occurred yes there has been an argument made by defense that perhaps the jury did not wholesale find that there was no rash but they did not find perhaps that one element of the direct instruction was not met for instance that there was an inability to escape and perhaps the jury found that was not beyond a reasonable doubt that they could have escaped i would submit to you even that argument when you get down to space level requires a credibility finding by the jury that the defendants are being untruthful that we have any case law in this circuit or elsewhere about how free a district judges to decide the defendants are telling the truth when the jury is found beyond a reasonable doubt  something that would require them to be lying i was not able i looked for something along those lines i was not able to find anything along this goes the other way the jury can acquit somebody and the judge can still sentences so they did it  supreme court gave for that is acquittal means it was improved beyond a reasonable doubt but it might still be more probable than not ab that this is the opposite direction it's proved beyond a reasonable doubt that they were not coerced correct correct and i've got that instruction right it was b r d yes absolutely it was not burden on defend the preponderance of the burden was on the government to prove beyond a reasonable doubt were guarding of the dress and  also address the issue of acceptance of responsibility again standard view there is clear error that also is an argument based the main argument is based upon the fact that the jury found that there was no draft and in fact the the defendant's three of the defendants testified as to the draft they also testified at trial that they did not believe or know that the cargo on the arrest at trial you could come in and persuade the judge as i understand it that you have accepted responsibility all you were doing was exercising your right to go to trial and gone and so i'm wondering if acceptance of responsibility now is that all viable claim as long as whenever the defendant relies on addressed you're preserving and issues such as a suppression issue whether or not a search was deliberately you can go to trial can't you and get acceptance of responsibility you're you're saying yes i did all these things but i was entrapped into it that doesn't preclude acceptance of responsibility at entrapment your many all the elements well what about the arrests i did it but i did it because that's the difference i think in this case the difference is that they haven't shows that that's not true that may be but i'm talking about that's the evidence just as the question of whether applies factually but i'm trying to understand why you could have acceptance of responsibility despite entrapment affirmative defense but you can't get it as a matter of law not as a matter of fact but as a matter of law if you exercise a direct affirmative defense i think the rest of address is when you put on a dress or find you're a gating you're asking them to negate and you're denying that you had intent to commit that crime i think an entrapment situation you're many and you walked into it that you had the intent that you knew what you're doing but you were led to do it by law enforcement you were entrapped to do it i think there's a distinction there do you need this you need to win on this point i would think that if you win on the point that they lied at their trials then that's enough to deny them jury found that there was no direct i mean to do that the jury would have to find that that the evidence the defense put on which was their testimony in that regard was not credible it was not truthful and they lied about it yes i want to just spend a minute on the the issue of what i'll call waiver is raised of course by the defendant and i think what they should give has a lot more credibility in my mind since you started off by admitting that the government is kind of waffled back and forth on the safety valve issue they argue that these folks were promised a safety valve and then it was pulled out from under them now admittedly there was lots of evidence and so on that you didn't need to have their cooperation and or stand that argument but is there something to the concept that it sounds like the government both in terms of the facts and the law is kind of switching back and forth from one foot to another depending on whoever happens to be in charge of the office of the particular point arise out of the trial and in subsequent safety valve interviews that led me as a prosecutor in that case to determine that i did not believe they were being truthful so you know from your perspective that they in effect breached the agreement that they they didn't do what they were supposed to do and for that reason you're not bound by any kind of a an obligation to let them have a safety valve i don't think even what they what they saying we believe that that the safety valve applied that there was a quote contractual  obligation that was stated in the course of discussions of resolving the case they never went anywhere but when you started out you believe that the safety valve applied right in this case i did not know the ona much you acted and you acted on the assumption that it believed that the safety valve applied right well certainly i don't think it was a bait and switch situation absolutely not i think they had a misunderstand law and did not do a full analysis of the application of the safety valve to title forty six and one of the issued and the p s r stated that it did not believe there is an application of the safety valve to a title forty six right up until that point i frankly was focused on the trial the litigation and dealt with the sensing when the sensing came about i would have thought actually the prosecutors would generally want the safety valve to apply to the crime in that year with the two ations they wanted anywhere they could get it because it's one more thing they can use to squeeze people into talking well i think in this situation when when the statutory analysis that's statutory now suffice dictates otherwise and the fact that i think looking at this statute congress do use a nine hundred three violation much more seriously then says say in one thousand fifty five simply for the fact that we have people outside the borders of our country operating which what they believe in with is impunity outside the reach of the law they're closer to the organizations that are creating the cocaine and are coming up with these elaborate plans to get into the united states that those people ought to look at a more severe punishment than then the visuals that's just not responsive to my question actually let's suppose congress twenty year minimum and that's it and we don't care what excuses and the prosecutors oh my gosh it's terrible i mean so i can offer these guys as twenty years minimum no nothing at number going to talk analysis is a lot a louse for the new safety valve and then you can't use it and i think in this instance the the and now says that the safety valves of title forty six does not allow for that even if the prosecutor thinks in the long run attorneys so what i want to know is is the government nationally now taking the position that the safety that your are arguing in this case before this court that is the uniform position of the department of justice nationwide i can ask to speak to them on that policy issue and i'm not aware of a policy that represents the position that i'm arguing to the court today so all you're arguing is the position of  discrediting your standing or anything else but you know we need to know what the government's position is we can't just come in and start arguing in the southern district of california that this statute it's pla meaning means x and meanwhile prosecutors up and down the ninth circuit not just in the side of safety outside of just outside of say or maybe in the northern district or even in the central district here i don't inquiries and make a submission as to what i can learn and if in fact department of justice has generated a policy regarding this or would intend to basic on court inquiries to have no direct communication with ma like to know the cases if they are sizable cases where the government has in fact treated safety valve supplying i think you started out by saying you were aware of a couple of instances my colleague mentioned the if you know of any other cases where the government has in fact supported the concept of the safety valve applying here that you could cite for me i pride misspoke when i said a couple cases i'm not aware otherside of all cases when  and two weeks after that i'll call me and said that he was willing to give him the safety valve at that time that was put on the record in the in the court on november fourteenth of november twenty third he believes it's in the transcript yes it's a deal we'll give you the safety valve before satisfied that these conditions are met and the defendant goes and talks in reliance on the have but then the government concludes perhaps the first a usa concludes with the defendants it was fine but then after they examined it further in the light of other evidence the government concludes that the defendant has not on the part of the government to offer the safety valve what would your thought be on that so they stated i don't think i think that i think under the law the cases i've cited where they're unfulfillable promises and things like that the government still down by its promise i thought the law was the opposite that the government was not bound by the misrepresentations of its agents and that if old to simplify it a little bit suppose that the congress had said the is mandatory minimum of x and a prosecutor didn't know that and made a deal for a plea of guilty in exchange for a sentence substantially less than x i think the law would be the government's not bound by the prosecutor's misrepresentation and the defendant still gets sentenced to x in violation of this deal i remember a case called thomas versus i on the issue that the safety valve applies through nine sixty to thirty five fifty three no i'm not going to have for my client because they've they've agreed that he should get the safety valve he relied on it to his detriment by not testifying i think that may have been an embankment certainly within the last couple of years that notwithstanding the lack of authority the government's held to this bargain and they had to go back and make the offer even if it was and i don't know whether it was a federal or the of the of the of the coast and is arrested and charged nine fifty five all the people on that boat are allowed to get safety valve if they qualify for all the other things so it doesn't seem to make much common sense that if you're fifteen miles out and you get arrested and charge your clients not involved in the you know i don't believe so you're obviously going to get a preview this is strictly on safety valve i'm well you know he got acceptance of responsibility but he didn't invoke at the rest of france or anything he did not testify and also just with respect to if i might add with respect to the common sense of the of the statute to the one point three here's a breakdown the last of the if you have a series on drugs and you get roll for it to go our role that congress when it passes a law writes words with meaning and we have we have to take this statute as it's written unless there's ambiguity in this case you've got statutes that govern two different kinds of things different territorial waters different functions as i just indicated admittedly there are not great distinctions but there are distinctions and they provided certain they made a reference certain  five fifty three ath the ca developed statute in fact thirty five fifty three states that the state develop lies to offenses under nine sixty therefore the special language itself indicates that in accordance with nine sixty means that if one is convicted under nineteen zero three and subject to the penalties of nine sixty that means that to them apply the minimum mandatory and the safety valve of nine sixty and thirty five fifty three not a subset of offense one cannot be found guilty of violating nine sixty by itself nine sixty is purely a penalty provision and requires that somebody have committed another offense therefore if there are five fifty three safety v is only going to list the substantive offenses to which safety valve applies there would be no reason to list nine sixty under that list because nine sixty is truly a penalty provision the reason congress indicated and thirty five fifty three as stated valve applies to offenses under nine sixty is because they clearly intended that any subset of the fans whose penalties are governed by nine sixty would be eligible for safety valve under thirty five fifty three and our position is that that is a plain language interpretation of thirty five fifty three and of nine sixty but you'd have to agree when she counsel that kind of the daisy chain approach to it i see your logic if you as you get there is there any statute a legislative history or anything else you can point to that would show that congress had in mind the very construction that you the penalties were half of those of the penalties of boats that were within the territorial waters now then sure there was an changes in the law and the law to recount of fide and in one nine hundred seventy the comprehensive drug abuse prevention and control act codified under twenty one u s c nine fifty five the prohibition of drug possession on board vessels but it's very clear from the legislative history that they that the congress inadvertently left out of that legislation nine fifty five which deals with both cases within the territorial waters and nine fifty five a on the high seas and importantly congress specifically stated that the penalties for nine fifty five a which is the equivalent of the current one thousand and three are to be governed by the penalties of nine sixty now what eventually happened was because of some jurisdictional issues that congress wished to incorporate into the high seas cases the nine explicitly that the penalties under forty six u s c one hundred three are to be in accordance with nine sixty therefore progress continued to expressly indicate in the legislation that they wish to continue the penalties for the high seas focuses to be the same as those in the nine fifty five cases or any other subset of offensive statute that would be controlled by hundred sixty so yes right of the legislative history i believe supports our position very well let me ask you about another issue before we run out of time your defendant if i've got them strewn i mean not as one of the ones who went to trial and said he was coerced is that right that's correct right now here was my concern about that let's assume for purposes of discussion that the safety valve is available to those defendants as a matter of law the law on the three points for acceptance of responsibility i mean is that while it's possible to go to trial and get it under mckinney it's hardly the usual thing you usually the guidelines say you don't get it and gonzales our decision dealing with mccain if i remember the name right makes that quite clear and also you don't get you don't get it if you lie trial  in the case of your defendant it's hard for me to make any sense of the jury verdict except that beyond a reasonable doubt they found that your client wide about directives that would seem to preclude him both from the three points for acceptance of responsibility or any points for acceptance of responsibility and also preclude him from the safety valve just because the information he provided to the government wasn't true  safety valve is legally available or not what am i missing here you are you know i think that this is an issue that addresses whether all four clients all four defendants would have been eligible for safety valve acceptance of responsibility the imperfect  directs has its own set of ellen if you don't think the district judge was saying the jury was wrong you think she was just saying there's enough to arrest her sentencing even though there wasn't enough for a defense you know i think there are a couple of responses so that to begin with the district judge sentencing had access to information beyond what the jury had for instance the district judge would have had information about statements that had been suppressed about safety valve sessions and the judge sat through both trials and certainly no one juror sat through any more than so the district judge had actually a bartie that says that a district judge can sentence on the basis that something the jury found beyond a reasonable doubt is not so you're o and what happened in that case i believe the defendant had engaged in a safety valve debrief had then testified and denied knowledge and then perhaps following trial again in another safety valve session and again said that yes i knew that there were drugs and involved in the specific case and and the court held that it was not clearly erroneous of the district judge in that case to grant safety valve to that defendant because the only requirement is that the defendant's give all the information that he has available to the government and even if at rivendell with those truthfully yes and even in that case where the defendants testified at trial and  that case denied knowledge of the drugs even in that case this court held that the district judge still had the authority to grant safety valve to the defendant because notwithstanding the trial  points the defendant had given all the information that was available and judge here ever i read over her statement and i wasn't sure i understood it did you did she ever make clear what whether she thought the jury was mistaken or defense experts who was a d e agent that people are threatens in colombia that the rest does occur and she believed that the defendants had been under duress knew think the jury thought all of the rest their workers columbia nice place to go for vacation anything like that where you want to get the elements of duress would require that the defendant screw for instance that they have no reasonable opportunity to escape so it would be plausible for the jury to think well perhaps there were there was direct their families when threatened either no your honor am least corder had escaped but respectfully i think that that's not the case i think that it only means that the jurors could have believed that within that you day period even though there had been actual threats to the defendant and his family the defendant had two days in which they could have tried to go to the police so you're right the jury figures well yeah they had to sit out in the boats because the bad guys think olympia were going to kill him with if they didn't have but once they're out there in the open seas they can just seek asylum the first freighter from another country they can pull up alongside still their families are back to colombia and their story was that their families have been threatened that that's true your honor and the other point is that the jury have to think they're whining about that because there's no apparent opportunity for the families to escape my concern was i thought you get past all the legal stuff and you give the jur going for on thinking the defendants could have gotten themselves to safety still the jury would have had had to a quick last found beyond a reasonable doubt that the defendants were not threatened with the deaths of their families back in colombia or you're out of it the tourist could have thought that the families back in colombia once they knew that their husbands were on the boat should have gone to another city or they should have gone to the police there  defense and somebody who's going forward on an affirmative defense is not denying any of the elements and that goes to acceptance responsibility again somebody who's going forward on affirmative defense that's as darius or any other the other from a defense admitting to the elements and it's the admissions of those elements that warrants the granting of acceptance responsibility which by the way probation also thought was appropriate in this case and grants it's all the defendant's acceptance responsibility by courts about sentencing guidelines change since i think that the fact that there is still an existence of a specific departure for direct indicates that someone can and can be found guilty and regarding the issue of duress to be the case law in the case that the court this court should give great deference to the findings of the district judge and in this case the judge did make very specific credibility findings about the defendants and she sat through two trials lasted from the time of arrest until sentencing i believe approximately three years evidence and it anymore cites for me i mean i agree with you we ought to give a lot of deference to the findings of a district judge but we also give a lot of deference to the verdict of juries and i would think a district judge would have some explaining to do if she were to give in deference to the verdict of a jury and did she explain any more than what we've already discussed through two trials over the course of eighteen months watched them heard their testimony and knew about the safety valve special sessions compared all of that information and all the testimony and found based on the experts and on their testimony that there was credible evidence that they're giving me some nice rhetoric here and avoiding answering my question i asked you did she give are there any more sites and he said no that was helpful and then i asked you did she give any more explanation of why she was not  accepting what the jury appears to have determined in its verdict and he talked about all of her knowledge but she was not on the jury i'm expecting her to talk about what like she can see between the jury verdict and her own impression and it sounds as though she did not address her remarks to that your family to the depth of her own understanding your i don't have any recollection of her specific other judge specifically address the issue of why she was granting it when the jury reached a guilty verdict so the answer to the question be no i don't i don't believe that she specifically addressed that issue to my recollection like the government make any objection during this that she was going to be on with the of i don't recall the governor making that specific objection the government certainly did object to the granting of these various departures and adjustments but regarding your honor specific issue i don't recall a specific objection and in that form ok thank you was there any any did anybody quick before judge gonzales that that was an issue that you needed to specifically address on the record or is there some case law that says that you must have that approach is that the point i was going to make your interviews but did you say were you the one that was doing this or that was now it was me ok did you say did you make the argument the judge kleinfeld is raised here is that she's departed as you're going around the findings of jury that she's presumed to know that law but if if there isn't such clear law then the next way it could be on her to make it clear to articulate would be that you said your honor how can you do the jury has found them found against them on their first two defense therefore you have to find a jury if you go against the jury and this you might have said well this is what i do know that did not occur ok thank you council on both sides united states versus gameboy card just submitted we appreciate the high quality of arguments we heard today