ok now i understand that you're splitting time and we're putting each persons time on the clock yes all right that doesn't mean i'm going to come and take you make you claims set out in the joint brief and mention of the splitting time with mr lippman who's arguing on behalf of javier perez our plan is we're just get we're going to split it equally and i'm and nobody is appearing for just to orient us all this is a case where that lends itself quite well to being divided because in a way it's two very separate cases there's the charges against mr perez which are quite separate from the charges against my client mr hernandez and the two era hated brothers and if you'll recall they were charged with the murder of ho saper a husk jr and as you know the jury did not come to a verdict on those charges and the government elected not to retry them and our sentence clients were sentenced to life terms based on the application of the drug guidelines under the and the drug conspiracy count and we raised three major challenges the big one of course was to the life sentence where we particularly concentrated on the reliability of the drug quantity finding we also raised  a short issue at the outset about the sealed documents and as well as a challenge to the dual lay for testimony that was admitted so i thought i'd just dive right into the questions that the court gave to us help the parties thank you very much so just to address that st question which was about the standard under which this court should review the admission of the lay opinion evidence our contention is that the error was preserved and that the correct standard is abuse of discretion and are i will say though that if this court feels that it was not properly preserved we're also arguing that we need the plain error standard well i gather and because it was so lengthy that there were some objections there were they weren't necessarily and they weren't on this ground well there were some of them were on this ground the way it the way it all played out was that pretrial the government gave notice that it was going to call this expert witness agent winds who was going to testify right ten different topics including the mexican mafia including gang structure tattoo interpreting drug jargon and there was lengthy litigation pretrial i mean multiple rounds of motions where the defense was objecting to every part of this testimony and the district court really indicated that he was going to very much limit this testimony the way it was if i think we know all that i think i think it's worse by sometimes i mean i never saw things that there were some objections to some things and many said objections but then many things that were said by the lay it as a challenge to the testimony but i didn't see any indication that you had specifically filed a motion with regard to the witnesses that you're complaining about that you mean now now you're wadi and he was that very st time that i knew and when i read that testimony i really i did stop myself and say wait a minute how did i miss this expert testimony there was so much litigation but your job at the prison is to track the mexican mafia and specifically mr martinez and look at attempts that are being made in this case through a fraudulent attorney to circumvent the prison's rules to prevent illegal communications between inmates prejudiced question because it's a good one in this case the government's the heart of the government's case were these five or six cooperating witnesses and in many cases they were the biggest people in the again these were big defendants who were looking at huge amounts of time who carried a lot of baggage and would judge players and it said at the beginning of the case was i don't want to try this case as trial by expert that's that was th concern about what i thought the government's theory was a puppet martino's was the leader who continued to run the enterprise from the supermax facility through illegal communications facilitated by 's role in the way he ran the enterprise from the prison i really don't matter very much to think the details about the mexican mafia i would agree with you that was a huge part of the case and that was testimony that really needed to be vetted because it wasn't just lay witness testimony i agree with you there was some of that where he can say where he authenticated documentary evidence but he really testified about having and so what ended up happening was that that expert testimony that waddy and gave ended up bolstering specifically what that that that you would say was not lay opinion was not lay testimony specifically that had something that had something to do with well if that was somehow wrapped i'm sorry what was the interpretation of the letters i mean the fact that he interpreted what the what the words were as i recall you heard what the words were that interpreted the meaning of those letters that he talked about the tattoos of all these various mexican mafia members and that mattered to them as serious a case because well that because that was that was really as a judge  mentioned that was really that was you know a huge part of the government's case was that the mexican mafia was controlling this gang and so you know i certainly think that his testimony he could have given that lay witness testify but when we have  expert testimony coming in what the case law says is that the district court needs to be a gatekeeper to that evidence and that's what didn't happen here there was a lot of expert actually limited the testimony when objections were made with regard to war yes i mean he i think that mexican mafia testimony would not have come in all of that expert testimony just given what his pretrial ruling was progress and said you should call the witnesses who actually have the information and and can say this is you know i have this tattoo this is what it means and the government did it right well they called these these witnesses and what they ended up to the witnesses as i mentioned just had huge problems they were all looking at life sentences they had huge criminal record goes to credibility and the jury ruled against you that by convicting your client so well that you have to assume that the jury credited their testimony well i'm saying that the reason they credited that testimony was because the government called these expert law enforcement witnesses who didn't have those problems who could corroborate and bolster that case law says that it is expert testimony when you're just translating you know drug jargon that that is within the purview of expert testimony it's that the case law becomes from their familiarity as the investigators who worked on this case for i don't know how many years will want is that in that would be proper lay testimony but in this case i think it would really help me if you could be specific yeah i mean about discussing this in the air is not helpful i mean there are some and the problem with being specific is that there weren't specific objections which is why it becomes why are all stretched from bush together right and i do think i mean a lot of the problem is is that because this expert witness wasn't vetted we don't know the source of the hearsay i mean i know because the agents admitted on the stand that that the basis for these some of these opinions was  to pinion that we're complaining about well let's say i mean when he's talking about interpret ing the letters he would say that you know i don't know interpret ng let's see interpret ing my  tattoos and he would talk about the history of the mexican mafia and their connection to mexican culture and the you know and how that that rests on on hearsay he talked about and i don't even know because it wasn't how does that hook up again all right so it sounds like he was testifying as an expert there or in something he read or how would he know this from the investigation that it's  connect i mean what i would say is just that this court this court has said we and the supreme court have said we need to have gatekeeping when it comes to expert testimony and part of the problem now is that i'm in the position of saying that you know i don't know what the basis of it was because this gate keeping wasn't happening i just know that there was a sea of lay testimony and see it expert testimony and really now with very little objection by defense counsel or try well at the worst the district cour this was even an issue of concern well i would say at the beginning of each of these law enforcement the f b i special agents kean and rodriguez and jenks there was always a discussion at the beginning where the defense would say wait a minute objection these guys are i mean for example on this thing about  i mean it's perfectly possible defense counsel so why make an object to that it doesn't make any difference what he said right well i mean i think this evidence was really well but that you're talking on gross and i'm trying to talk about specifics and it's not helpful for me to talk about gross i guess what i mean i don't have a lot of statistics examples partly because there wasn't this gatekeeping and i don't know what was relying on hearsay i mean some of the former witnesses and i think it's a good one that having cooperation by police officers obviously gives them more weight but i can't think of better unless i know what we're talking about specifically well let me tell you i know i know your s the basis for his or in part in some way played a part in his testimony about puppet martinez and the connection to th street which was a critical issue now again because this gate keeping didn't happen you know i don't we don't i i'm not able to say exactly how that would've you know having that gate keeping where the defense could have said this you know that file about martinez contained all this hearsay and it wasn't reliable because it relied on cooperating witness estified and so the what i'm arguing and they were talking substantiated all that so that's no well i mean i don't know about i'm not sure about documents but he certainly testified i mean actually i don't think there were a lot of documents but he us through thank you murdered on september th wrecked and then the attempted murder of mr c doe was on september twenty one yes and brian and i had indicated in the brief that it was a right don't spend too much time on this plane anyways so it matter whether perez was part of the new of the object of the conspiracy in california or just whether there was a conspiracy another as if  whoever the other person were were agreed in in california that miss sita was going to be murders but didn't tell paris just told paris that they were going to take him there an agreement in california even if paris wasn't part of it or is it your argument that paris had to be part of it well that's both the forest have to be part of the conspiracy he when he went to mexico why eventually it was part of it and there's case law about how you know if you join laden you're still bound by the whatever the equipment is so it's i'm trying to understand whether it's critical to what is essentially an extraterritorial ality argument that peres have been in the occurs because it's admitted under the in the bestowal case that the application of that statute does not apply unless the crime occurred in but then the question my mind is how much of that crime has to occur there's some suggestion i mean you've got two different crimes here you've got the conspiracy and then you've got to deal actual attempted murder and i think they need to be treated differently and as a judge presiding was suggesting perhaps when she joined the conspiracy year but you know we'll have to figure this out but you may be bound by all of vents and that conspiracy there seems to be some evidence that some of that conspiracy may have happened in california what about the attempted murder itself none of that conspiracy or none of that charge happened in california the whole the attempted murder occurs when he makes the attempt and strangles this well that's my question is are there predicate accident may have occurred in california i mean do you look well st of all the conspiracy i don't agree with you i think conspiracy is different it's not just when it happens but for attempted murder is it is it only when they approach him and try and actually kill him that is this mission and that is well but my question there's some case l california that suggests that that if you have a predicate act a non de minimus predicate act that occurs in california that that can count so for example if they bought the rope if they if they planned this out in california and then went down why wouldn't that be a predicate act to the attempted murder that could give a hook to jurisdiction in calif that is possible if there was evidence of that ok is there and you're telling me there's no  just don't have any evidence of where the rope was bought what about just plant what about just deciding to kill is take the conspiracy out of it but what about if there were evidence and maybe there is not the pres knew in california he was going down to either murder or in this case attempted murder would that be enough of a predicate act separate from the conspiracy i would say no because under the elements of the  of the conspiracy or of the actual attempted murder county in the can that one was a county teen was the attempted murder which i would submit clearly violates the in this case none of those crime charged to play from a faithful that's this fall and that flies in the face of the court instructions number fifty three which says that there must be an overt act in california but then fifty yeah and that's i guess that's the ambiguity in the instructions right that's the inconsistency yes because on the very next instruction which is more specific with regard to vi car conspiracy the jury is told that they have to find an overt act committed in the state which the evidence suggests could have been obtained in the car in order to and there is already being delaying the victim to get into the car there is no driving that the government made and could have been in the jury discussions well yes he did do this so we don't know what the jury decided when it decided to guilty because someone could have said well no wait a minute it doesn't matter where it happened because this says it doesn't matter where it happened so but this is happened this is more specific and it follows after the erroneous does that make a difference and it falls after the what after the erroneous and instruction in fifty two in other words during is told specifically with regard to by car conspiracy you must find by proof beyond a reasonable doubt forth an overt act was committed in this state by one or more of the persons so it doesn't have to be committed by paradis right but it has to be a part of it in the state but fifty fifty three happens california so we have to convict on the other hand they said no wait a minute instruction could be two says it doesn't matter where it happened so therefore he's guilty and so it was the it was the buy it was the error in the instructions were it should have been if they if they didn't have this instruction fifty two we may not be here so so you're not challenging count sixteen but your counting challenge in count eighteen is that graco sixteen is being challenged as well because we're saying that  e nabisco case request it states that that count is i did not read that in your grief that you were challenging count sixteen and did i think it was seventeen that you're referring to the kidnapping and you know i think error caused the jury confusion and we don't know if there was a unanimity of the finding that the act took place in california which is where the and you're talking about  credit those predicate outs were are the ones that are in the in order to support count one rico they would have to prove the predicate acts which were sixteen and then he can be convicted in count one of rico conspiracy if the jury finds the narcotics there was a cascade that's possible but there was absolutely no evidence in this in this case that related to him and his involvement but he doesn't he doesn't have to engaged in to predicate acts other coconspirators can engage in predicate acts come in are what he would have to have just have to show that he joined the conspiracy in willfully became a member of it and wrecked but the conspiracy never joined there's no evidence that he joined the rico conspiracy and in all the drug operations of the eight hundred grain other than at the time when he came in the picture and therefore the terms of being responsible for rico he would have to have agreed and entered into an agreement for specifically those predicate and in other words if you join us if you join a rico conspiracy again today you're not responsible for everything the gang is doing or has done just because you become to the and the enterprise carried out its affairs through a pattern of racketeering activity which included drug dealing collecting rance murdering people protection kidnapping people all these things that were charged in the rest of the indictment so if the if the jury finds that he joined an ongoing rico conspiracy and that these acts were reasonably foreseeable there is murder the street vendor which resulted in the tragic slaying of the baby was essentially to maintain enterprise operations on the street corners in the film and controlling collect yes but he there would have to be evidence that when he joined the gang or joined the enterprise not the gang but joined the enterprise that it was reasonably foreseeable that this activity would be committed that activity had already been committed when he joined the i guess the problem i'm having is on the basis of the overwhelming evidence of the enterprise's activities it's not a hard stretch for me to say that a reasonable jury could come to the conclusion that perot's knew darn well what he was getting into when he went along on the ride to  well he wasn't getting into that the drugs that had been sold before or the killing that it happened before he was it was a reason for cia but this was a part and parcel of the way the enterprise did business through fear and intimidation and again those are morning honestly receive a night of states and i'd like to join my colleagues on the other side and thanking you for the guidance for argument i'll try to go through and hopefully reach all four of the questions at the core post i'm going to start with the lay an expert testimony issue that was raised in the joint opening brief and just starting with the standard by which this court should prove you that issue it's not enough that the party engaged they engage in pretrial litigation about agent winds his testimony it's not enough because there was no pretrial ruling at all much less a pretrial ruling that would cover other witnesses testimony they had an obligation while these other witnesses were testifying to object if they thought that there was something problematic about the testimony that was being rendered and they didn't really do that there were some isolated and sporadic objections but they didn't really address the opinion issue there that they're raising now on appeal i wanted i believe there's only one objection that even references detective james's testimony and even in that particular objection mr prez's counsel said that he had no problem with that witness simply defining terms and so that's beyond just i believe and i can get it precisely through the court but i but it was an objection to interpret any particular term in particular phrase that was used by individuals that were engaging in a conversation with one another but again even there what he said i i don't have any problem with him simply defining terms what i have a problem with is talking further about the context in this particular investigation in which those terms arise and so again here to the extent that their argument on appeal is i've got a problem with this discussion of jargon they've  issue in the district court one person if i'm sorry on one defendant it yes but but that certainly would have brought it to everyone else's attention and would have brought the issue to the fore and said look if you want to have a problem with this you do need to raise it with the court and they did and that's why the government's position is that plane error review applies here and it was less let's go forward let's assume that they're not and so the only issues that the only issues that council has identified as being problematic at least in argument today were the it was the interpretation accurately representing he personally observed these individuals in the prison interacting with each other every single day he personally saw their tattoos and you know i'm wearing a suit i wear a suit almost every single day and he's going to come into court and so if you saw me going into the u s attorney's office every single day wearing a suit flashing my badge and i go and you probably would reach the conclusion that i'm in is this united states attorney and i'm employed in that particular office if you similarly in prison saw individuals talking with each other intercepted their per primarily about the structure of mexican mafia and how would he know that i buy his observations in the court in prison and i do think that that is where his particular focus was on how puppet martinez was running this particular crook click and running this particular action to testify more broadly and show how his connection to the mexican mafia and how the mexico i mean i guess one of the important things here was this notion that there  number of other witnesses that testified to that effect i don't recall if if it came from the warrior and also from maybe yes i do i mean that certainly came from various cooperating witnesses and of course they being members of the gangs in general he was investigating this prison gang this prison gang under the leadership of mr martinez and given that personal and direct involvement in the investigation of this particular prison gang i think much more of the information he was rendering during trial is actually properly characterized as percipient witness testimony did he testified show mr martinez just what was mr marchand just file that he read he did testify that he read that file i don't really believe that he actually relate any information from that file i think the purpose of the testimony about mr march in his file was primarily and i could be wrong with it but i believe that it was primarily to just say that it alerted him to the fact that this was an individual of particular interest who when i'm investigating the mexican mafia i need to look at this guy because i need to consider him as a member of the mexican mafia and that background from his file was confirmed by and guardian's direct observations on it again on a daily basis in the in the prison and his interception of many many many of mr martinez is written in oral communications and the other so i think that the got interest money is is i think the primary issue that has been raised for an argument at the tattoos again i think that the outside the prison of the mexican mafia yes that's yes that's a street gang that has an allegiance to the mexican mafia so basically if any individual who's a member of th street goes into prison that they are under the umbrella of mexican don't see l c s is some sort of an offshoot or it's a click click then within the th street yes so there's multiple different cliques that are within the th street gang so it's kind of you know you've got little tiny or clubs that kind of go up to this grand coun testified to all of that structure i believe prime primarily cooperate in witnesses explained how that structure work i do think that there was some testimony and i have to go back through precisely about what the exact testimony was about the apprise was it mexican mafia general or one of the sub groups it was the th street gang and i think that with a particular focus on the colombia little psycho so it was these street gang outside of the prison cont t and just on this issue i think they haven't identified any particular statement that is particularly problematic i think that goes to the harmlessness of any error here there was overwhelming evidence from cooperate or after cooperate or after cooperate or about the  interpretation of jargon about the graffiti about tattoos and about the structure of the gang and i understand that they've they've contested down the credibility of those witnesses but in the district court they really didn't dispute the existence of the enterprise they didn't dispute it structure they didn't dispute what these a big problem with the instruction because of where the predicate act of the murder took place so i want to make two points on that your honor st yes we do so let me see if i can break it down here a little bit better so i'll start st with the question which i think the brief did it address a little bit and perhaps not as clearly as it could have is this question of whether the locus of the offense is actually an element that has to be proven to the jury beyond a reasonable doubt and i in that argument i think it's important to understand what exactly it is that is the element of the rico and by car offense that is contested here and the element is was there a predicate act that did the defendant commit a crime of violence that was charged in the particular count and the jury received instructions about that predicate crime of violence that is identified in the particular count and those instructions map on or they're supposed to map onto what the elements are that the government or the state would have to prove if they proceeded to trial on that particular act and so here the predicate act with respect to count sixteen is conspiracy conspiracy to commit murder in california penal code section one hundred and two requires that the se allege improve at least one act but there's no actual reference in the underlying statute in calif under california law that would impose upon the government a burden to prove that there was an overt act that usually in california well but wouldn't that be i mean there ha for there to be jurisdiction there has to be some act that occurs in california otherwise you're applying it wholly territorially are you yes or the extraterritorial yes in order for there in order for california basically to have the power to legislate the power to reach this particular conduct there does have to be some over in the state of so long and what i'm interested in is what happened in california because i mean that seems to be the big question and what is what is it maybe you can walk through that maybe you're going to but what is the actual evidence that the jury heard about acts that happened in california obviously the attempted murder happened in mexico but what happened in california so so well because the attempted murder occurred in mexico if you agree with that then with regard to i think it's county teen there's prejudicial or period the end no it's of no and the reason for that is because under california law there can be sufficient there you can have a series of predicate acts that pre date the actus reus that can still give california jurisdiction under its long arm stuck you know what's what so here i think parental made a phone call to make sure they had the car in argument is that under california law they could prosecute what happened here in mexico if a phone call is made in california yes absolutely and i think that because that was a predicate sorry i'm  preparatory is a better way to say it that was a preparatory act to the attempted murder was setting up an establishing the vehicle to take him down to mexico and the kidnapping itself also was a perfect tory act and that happened in it california as well yes and in fact we have with respect to that issue we have a jury finding that all of the acts in vault in the commission of the conspiracy to kidnap are in the united states and that's because the jury made that particular finding with respect to count twenty pursuant to instruction number fifty nine so we have a jury finding that all of the actual actus reus happened in mexico is brown and that's a case in which the doctor transported came to the united states transported his patient to mexico did a botched surgery in mexico and then brought him back and that's essentially the same kind of kind of here is the problem you have in brown is that when he didn't die and tell he was brought back so he died in california and and so that was my question about brown is you play and to go down and amputate his leg apparently illegally and you go down to mexico and and do that if he had died in mexico would brown have turned out differently i don't think so because brown really focuse and so it seems to me that you're right that that kidnapping is a non de minimus act with intent to commit the crime absolutely and maybe that that's not is that the same as agreement well before the phone call to set up the the ride to mexico that that least my other question which is with regard to the whether any part of the conspiracy occurred in california  does paris has to be part of the conspiracy that occurred in california to murder the conspiracy to murder or is it enough that or if they're forseeable and certainly at the point that he well but the prior acts that you're responsible for are over at x this is the conspiracy itself there's a confusion it often goes on with regard to and problem which is not a pinkerton problem this is the conspiracy itself not what the conspiracy it's not the overt acts in pursuit of the conspiracy so the question is is he were responsible for the question which is is he part of that is he responsible for the conspiracy before he joins the conspiracy not for the overt acts of the conspiracy but for there being a conspiracy yes i believe california could exercise jurisdiction of that because some part of the conspiracy took place in california but i think i think the question is is subsetting side extraterritoriality and i think we've heard the argument on that are you liable when you join a conspiracy i think the answer is yes when you join a conspiracy at any point are you liable for what has happened before like if there's a conspiracy to commit murder and then you join the conspiracy by helping arrange a car for it are you liable for the whole conspiracy i think the answer is yes and last if you know yeah if you if if it's real i understand that there's a conspiracy to attempt murder but what if you don't but if you think it's a conspiracy to kidnap like a person and take them to tijuana well he will live happily ever after are you responsible have you committed the crime of conspiracy in california that's what i'm trying to find out so there is certainly there is a moment that mr if he if he never not until he got to mexico and then i think he would be responsible for the for the prior acts and the prior agreement that was that was made but i guess isn't that part of the question when he arranged to get the car did he have to have in his mind ok we're doing this so we go down and kill him or attempt to kill him do you does the government have to prove that that she thought was in his mind in california or is it now that that thought came into his mind somewhere in mexico and then it traces back and the other two had entry and i'm willing to accept that there was sufficient evidence that the other two entered into into conspiracy in california so i i think have to answer that question one is is st i do think that it is sufficient that he entered the agreement at some point in time i don't think he had to know at the moment that he placed that phone call that that th ey were ultimately taking him to mexico for the purpose of murdering him i do think the evidence is quite clear that he did know that at that point he wanted us so at the i think to focus on that  order to keep him safe and protect him from harm it seems like if well but it could have been just to get him out it could actually could have been it could have been he's going to say there's a price on his head let's get him out of here it's bad for business it's bad for everybody we just got to get him out of here it could have been that so the other and the other and i think that really quassia is any argument on that is that the jury found that the purpose of mr prez's participation in the attempted murder in the purpose of his participation in the kidnapping conspiracy let's let's put this way the evidence is plausible so if there was a erroneous instruction and would be hard to call it harmless another thing it's not a sufficiency question as such it's a question of whether if there was an erroneous because we don't have the same kind of curative instruction that we had with instruction number fifty three with respect to count sixteen so there's a problem there that is distinct from does that make it constitutional error such that we have to find beyond a reasonable doubt but it's a different standard i think it would be it would be constitutional error to the extent that it was an element that the jury would have to find and that's i think where the underlying california law really comes into play and california law as set forth  is that the territorial jurisdiction question is not an element that the jury has to decide and certainly not something that the defendant has a right to a finding beyond a reasonable doubt and here i think that's where the plane are standardly kind of how can that be i don't understand it's not a territorial jurisdiction questions of fact where this happened yes and under california law that's a fact that can be found by the judge by a preponderance of the evidence or by that of the evidence it's not an element that the state has to prove beyond a reasonable doubt and so i think here it's not clear or obvious that mr prez had a right to a jury finding at all on this question of look at some because we're in plain error review because it's not clear obvious given the state of california law they have a right to a jury finding on the  crime it can't be plain error and then even if we assume that there's locus of the crime is an element that mr prez would have been entitled to a jury finding on i do think viewing the instructions as a whole at least with respect to the conspiracy don't we have to if we're going to uphold count eighteen if if there's any way to do it don't we have to take facts that were found by the jury with respect to count sixteen in the conspiracy and carry them over to any of those facts that were found if they could be a non de minimus preparatory act for murder or attempted murder we could theoretically uphold count a t s is that the government's position here ok and those acts would be the borrowing of the car used to train were the victim in tricking the victim to get into the car thinking that he was going to   it seems like your strongest argument here is that was harmless and would not affect the sentencing because regardless he would have had a life a minimum of a life sentence is that right so i would like to st about you on to st on your ok and again that's nine hundred and sixty five thousand one hundred and sixty six dollars so yes there was a firearm that was recovered and it was recovered in circumstances that were entirely consistent with the multiple cooperating witnesses who testified that the firearms were kind of made available as a general matter but even if and even if that personal recovery wasn't sufficient a case that i think is on point with respect to this issue and it's out of the st circuit so it's persuasive not binding is united states for figuring this go back you're telling me that right there so the news is the only one where there was an actual law enforcement officer who recovered a firearm now that's but that's he's not the only individual who is ever identified as having ever possessed a firearm at g e r imprisonment yes absolutely and the judge said that he would impose a life in prison sentence i do think that under these circumstances we may be in the kind of narrow category of cases in which you could say that even those guidelines calculation error is harmless  for the attempted murder in terms of instruction fifty six which related to the  the acts it is not sufficient for a preparatory act to be part of the attempt other words the buying of the rope or obtaining of a par are not sufficient to meet the test back up because does that mean that if it was at a if they'd actually killed him it would have been enough because it was planning that because it was just attempt to only look at their attempt though they get the charge for the because it doesn't seem to be what you're saying doesn't seem to be consistent the conspiracy to murder the actual temp charge those are not to be determined as being an act in california even if there was a call for even if a tells b i want you to murder and there after b obtains a car to transport him to mexico and tricks the victim into the car you're saying a cannot be convicted under aiding and abetting theory of attempted murder that can't be the law that would be with respect to the conspiracy yes because there were no i'm talking about attempted murder if a orders b to try to kill someone and be there after carries out the order and attempts to murder somebody wouldn't a also be responsible for attempted murder even though all a did was order the murder in california yes but that's that's not what happened here and that in terms of the car to drive it to mexico to murder him in california would that be attempted murder noise and not of the conspiracy to murder that would satisfy count sixteen let's stick conspiracy out of it we got decides he wants to kill him yes he rents a car in california kidnaps him in california drives him across the border to mexico and then tries to kill him would california know how you can say that well it's because that is the actual act of the tale because of what attempt is because attempt in order to protect against i mean this is a whole thing that has to be preached at all but my recollection is that it has it's things like you know somebody drives a car up to a bank and tending and you know what with a gun in his hand but never actually goes in is that attempted to rob a bank robbery and the answer is usually no but if he walks in and then changes his mind alarm walks in by just water then that is attempted bank robbery so that's the problem is that for other reasons attempt as closely it happened because you don't want to discourage people from changing their mind mentioned this and i must be missing something but it says whenever a person who within the state cat kidnaps another person within the meaning of sections to a seven to nine i don't know if they did here and there after carries the person into another state or the attempted murder you're on stronger ground as the conspiracy but as to the connecting well he would he asked her to get the car to go to its i think the question was why get the car and go to mexico will he need a car to hide him out is intention was to go with with with him and take a rest he didn't want to go he thought when he met in terms of the x when he met he thought he's getting money they said no where are we going we're taking in mexico don't he didn't he didn't want to go