here united states versus camper florists and flies different today represents a figure of the justice system we would submit on the most serious levels this was the rarest of so called sting operations where no drugs were ever seized during the course of the investigation no money was ever delivered during the course of the investigation and more importantly your honour's this was the rarest of criminal trials with a key government witness the person who was responsible for orchestrating all the interaction with the defendants during the course of the operation and the person who was the most important witness during the testimony at trial perjured himself so significantly but the government was forced to rip up his cooperation agreement and you can if you like you can credit nothing that comes out of his mouth so what do you do if the if the jury does anyway your honor i think we have to look at the record and look at what happened in the case and i think that that goes to the heart of the problem in terms of the three key evidence yury errors that we talked about in our briefs and i just want to focus in on the first one on how it wasn't cured my any simple instruction to the jury did they could disregard parts of the testimony if we look at the testimony identifying the only substance that was ever seen during the course of the investigation that the government purported was cocaine to allow that person to offer expert testimony was something that could not be cured by a simple instruction this was the only to be very clear this was the only substance that was ever seen and what what occurred here is that the diff the the witness described what was almost unquestionably a chemical test that he said he was conducting on the basis of his specialized experience as a member of the syn aloa cartel so this brings it clearly within the scope of rule seven o two and what he described was rubbing the powder until we emitted some sort of oil or butter and that by the visual investigation of that in a later point he said that he could detect some smell or you know but then on the basis of that he was able to term that this was cocaine of a high purity and you wonder if that's not if that is not seven o two testimony based on specialized knowledge specialized knowledge then the entire purpose of cumhal tire expanding the scope of what we understand to be testimony that has to be subjected to the analysis of the issue is not wast there's no question that his testimony had expert aspects to it and that and that he he couldn't testify to that unless he had the experience that was necessary to do that but he did this for a parent when his his nose and his feel and his i was good enough for cartels and buying this stuff we got limited testimony about his background in the cartel where we really learned is that he was a person whose main job was kidnapped being responsible for some kidnappings and murder and we got limited information about that we heard about this in a hearing that was not very long before the trial for the first time that he conducted this test and at the end of the day the affidavit that we submitted from one of the leading experts in the in al seuss of cocaine and drug testing says that the method that he described was scientifically impossible now if we had gone through the appropriate dauber hearing it was required we would have been able to probe the question of exactly what his background was on the subject is this scientifically but in the in the remainder of my time here i do want to focus a bit we think that was a serious error that requires a reversal i do want to focus a bit on the other two evidentiary errors that we focused in on our briefs one of them was the decision to allow exactly what this court sitting united states v crews is not allowed and united states we cruise the agent was describing a post arrest conversation with the defendant and there were big u s statements made about  his by the defendant about what occurred during the course of the drug deal and then the government said well what did you understand and i mean by that and he espoused his theory as to what the defendants ambiguous statements meant and this court said that is absolutely improper and requires reversal this case is exactly like cruise only it only we would submit your honor it's worse because the it in cruise the statement was not nearly as bad as the is it can be and the government asked over our objection over repeated objection what did you understand him to mean by that reach into his mind and offer your own interpretation as a federal agent and he said i understood him to mean that that was cocaine and  honor that went right to the heart of the issues at trial the same thing occur within this with regard to mr santos pena and his interpretations of each of the defendant's statements throughout the recordings where there were big you statements made in you who was not a coconspirator and was really much more of a government agent he was a long term contract employee went on to interpret each one of these big you statements tainting the trial in a way that was impossible for us to repair could you address  we fully adopt the conscious avoidance argument and i don't want to step on his argument but i do want to say one thing about your honor this simply was not a case where conscious wouldn't were conscious avoidance instruction was a was proper this was a case where my name is michael levy i represent frankie flores that is a perfect segue it's not a perfect segue to where i was going to go first but i'm happy to address it if that's the question that your honor has unconscious avoidance the issue probability that a relevant fact exists and second evidence that the defendants from which a jury can conclude beyond a reasonable doubt that the defendants deliberately avoided confirming that fact the defendants pointed out that there was no evidence of this second element and in advance of the charging conference put in a letter saying whatever else there is about the high probability of the fact that these drugs were going to the united states by the way these drugs were never going to the united states this was all a sting operation so it gets a little bit strange to talk about knowledge as opposed to i guess what i would call belief but the defense pointed out that whatever there is to say about the high probability that the drugs were going to the united states there was nothing in the record the defense french essentially laid down a challenge there's nothing in the record to show that if these defendants were unaware of that fact that it was because they deliberately chose to avoid knowledge at the charging conference the government of where did that question entirely never never pointed out anything that went to the second element of conscious avoidance the court in finding that instruction would be given never said anything about that second element focus entirely on the first element when the government eventually in its rebuttal summation talked about conscious avoidance it talked only about the high probability never pointed to a single thing that suggested that these defendants had deliberately avoided the knowledge if they didn't have the knowledge and so that's the way the trial progressed is that the second element of conscious avoidance didn't exist at all and the reason is there was no evidence of it there actually the defense was right there was insufficient evidence of that second element this was a knowledge case these defendants either knew where they did not know so there would be really no basis for assuming that the jury could have reached its verdict on that base that that is not the way i understand that line of cases for sufficiency challenges that is not the way this court has seen conscious avoidance challenges and  as an example of that there is this court has recognized that there is an opportunity for confusion when both knowledge and conscious avoidance are asked but there's really no evidence of conscious avoidance in that no matter how much you tell the jury don't convict based on recklessness don't convict based on negligence this court has expressly said in faery me that giving a conscious of one's instruction where it's unwarranted means the jury could quote conclude that no actual knowledge existed but might nonetheless convict if it believed that the defendant had not tried hard enough to learn the truth so so i understand your honour's point that in other sufficiency of the evidence and it's of a piece with the government's overall strategy at this trial that whatever other evidence the government had the evidence the central issue at trial was whether or not the defendants had the intent to import or  knew that the drugs would be imported into the united states that evidence on that element was actually quite thin and the government in a variety of ways tried to bolster its case to press every advantage including several unfair and illegal advantages to try to get over what they recognized was a significant hurdle one we just talked about was to lower the hurdle altogether eighty percent these drugs take this route in the united states that is again goes to knowledge and it came in and i don't believe there was an objection to the not here saying that there wasn't evidence that the government could have offered but recognizing that the evidence was thin and by the way there's no there was no reason to believe that our clients knew that statistic but with respect to to trying to clear the hurdle the main piece of evidence was the so called confessions of the defendant the government recognize that fully the government opened by a mediately turning to the last chronological event in the entire narrative the post arrest statements in which the defendant supposedly said we knew these drugs were going to the united states in putting on its case the government called its second witness the affectively the kind of first narrative fact it put in was the last narrative fact chronologically the fact that these defendants had supposedly made this post arrest confession on this one critical issue that was central to the trial in summation the government made it perfectly clear they opened their s on by saying this case is about the confessions if you believe the confessions you can stop listening to me here the defendants are guilty quote full period stop that's what the defendant said the confessions were everything and the government realized that the confessions if they happened should have been proved through the testimony of the agent who took them that is the appropriate way to put that and that's what this court recognized in quinto that's what has been recognized in any number of cases what the government did here though was bolster pre buy its case by putting in a written report typed detailed on d n a letterhead and that is reversible error for exactly the reasons that this court decided in court of this case is exactly like when to an every material respect and like the first circuit case lizotte of rivera where they were the first circuit did the same thing  the central issue as in quinto was the intent the central evidence of intent as in quinto was this disputed post arrest statement in which the government claimed in the defendant's disputed the jury that the court had no doubt that once the written report came in that any dispute about the veracity of the agent's testimony about what happened in that post the arrest was done that it would be i think in the in this court's words the unusual juror who could possibly have any doubt about the government's version of what happened in that post arrest one for the d a report of it came in improperly so as in quinto this n a report which was powerfully prejudicial as this court has recognized was allowed to come in with no basis whatsoever and then the government exploited it for everything it was worth once the report came in before this agent had ever testified for the agent had ever been impeached challenge on any aspect of anything this report came in the government made it all about that report it was never again for a moment about the agent's testimony about what happened in the post arrest interview the government put the report in for for my client for mr flores before the agent had even said a word about what happened in the post arrest interview the report gets introduced into evidence over that case he testified first and then the report improperly came in and this court said we recognize fully that the agent has testified from his memory about most of the things that are in the report but that was challengeable in essence that was something that could be debated by the parties and the jury would would have to decide once the report came in the debate was over it would be impossible this court for a jury not to conclude that the agent was telling the truth once it's hearsay report multiple pages lots of detail da letterhead in that case or as if you if you look at quinto there is there is no material difference between this case in that case an improper d e a report just sabotage is the central piece of dispute in the case and requires  and the only explanation the district court ever gave on this entire subject was allow it there was there was nothing not a word of explanation for why it came in one important point on that and we make this point in our br there is no case in which this court has ever allowed a prior consistent statement to come in before the witness had been impeached here the defense had barely sat down from their opening statement when the government laying in w dying to get this d n a report and jumps up waves it around and offers it in saying it's now a prior consistent statement there is no case in which this court has ever found and the court has expressly said to the contrary the you can get a prior consistent statement and before the witness has at least been impeached first the only case that even comes close is o'connor which is a decision by your honor judge curious and in that case it wasn't admitted exception it shouldn't come in for that but it could have come in as a prior consistent statement and we can see that in the opening statement and over the course of the trial that that was appropriate so it was essentially appellate review that said ok this  come in for that and you will not find a case in which this court has ever contradicted its express statement that it should await impeachment and here it did not he was a rebuttal thank you then we'll hear the united states may please the court my name is a male bovey i represent the government on appeal and i represented the government in the district court this is a case where the defendants were caught red handed committing this crime there were seven meetings in three countries over the course of about six weeks those meetings you know that about twenty six audio and video recordings documenting what happened there the d a seized phones from the defendants we offered about twenty five chat of the tronic communications between the defendants and coconspirators and associates regarding this crime and there were another ten strings that overlap to some extent between compo and sent us p all documenting on video and in writing this crime on intent as well yes your honor on intent as well and i think what why conscious of what we were permitted to see and i think really that and i know the crux of this your honor is a point that the defense actually made in their closings there were thirteen times in these meetings over the course of october and november two thousand and fifteen when the sources made reference to the fact that the cocaine that the defendants were to provide would be brought to the united states now on the one hand those statements by the sources on these recordings do support a finding of actual knowledge on the other hand the statements by the sources coupled with a lack of response by the defendants support an inference that they intentionally were not responding to avoid creating objective evidence that they had agreed to do this at the same thing as conscious avoidance to be so cautious that you don't allow yourself to to speak a guilt that you have fully aware i think this went further than that judge and it really goes to the theme that your honor struck in the united states versus cutey when there's an argument about a lack of knowledge plus evidence of deep involvement of a scheme that's the type of situation that all that calls out for a conscious and when it's instruction and this wasn't the evidence here it wasn't just from our perspective the defendants being cautious it supported an inference that they were being intentional they were intentionally not responding to that aspect of the negotiations to avoid exposing to try and avoid exposing themselves to criminal liability in the united states and that's supported by other aspects of the record at one point during the meetings in caracas flora's says the da is not even down here and that's also consistent with people a group of defendants were mindful of the exposure that they face and are trying to be careful to avoid to participate in a drug transaction but to limit their exposure under u s law another part of the evidence that supports this inference that provided the factual predicate for the conscious and when it's instruction was the structure of the deal itself and the structure of the deal was for the defendants to provide that cocaine have it flown on a private jet from venezuela  and then seek to sort of absolve themselves from responsibility for that the expert special agent mahoney explain why that practice arose as law enforcement in south and central america became more effective at seizing drug shipments like this traffickers in colombia and venezuela south america started to segment the way that they sent these shipments toward the united states to keep themselves from having to talk about importation to avoid having to deal directly with mexican drug traffickers the scene of a cartel who would themselves be responsible for personally importing the drugs and the evidence here was sufficient to support an inference also that the defendants were aware of these patterns compo in haiti talks about being connected to a highly high ranking member of the fark a foreign terrorist organization that is the largest producer of cocaine in the united states so both judge crotty in the jury were certainly entitled to put all these fast together the defendants behavior in these meetings the defendant structuring of this deal and the expert testimony about why that the deal was in fact structureless way to basically appl right and then you get the end has you could just make it up i think that there's generally room for that type of concern in sting investigations but that concerns not arise here because in this case the defendants from the first meeting on october third two thousand and fifteen themselves spoken terms of using private planes to ship drugs from my kitty airport north towards honduras that chats and their phones reflected communications about using private planes before the sources ever got involved before the sting ever started so i don't think this was a case where the sting sort of manipulated the application of enhancement there are there are two points in that i mean that followed it were two out of the circuit failed to grapple with two of the really fundamental issues that i that supported judge crossed his application of this enhanced meant the first and now there's precedent in the circuit for this under remeron and also the summ order in suarez is that importation is a continuous process starts in south america where the drugs are produced and continues until the drugs get to the united states so a defendant to be involved in importation doesn't have to be at the us mexico border doesn't have to carry the drugs in the united states that's i think you're saying that the person who packs it and and a field in in colombia and puts it on a mule and brings it to the next stage could also be hit with this enhancement because because in the end i does it get here except by airplane i think there are other ways that cocaine can reach the united states maritime application of this unhandsome and that is that importation starts in south america and using a private jet from venezuela to honduras is using a jet importation the second point that the ninth circuit case doesn't grapple with at all is the importance of applying the relevant conduct guideline and i'd like to engage a little bit in an argument that's made in the flores reply brief that basically the court should judge crotty should have in this court should ignore one b one point three the relevant conduct guideline that's just contrary to whether the guidelines are written to start with the statutory violation here twenty one u s c nine sixty three you go to the statutory index in the guidelines here that index directs us to offense guidelines in the two d one section of the guidelines not to two x one point one when you turn to to do you want point one the title of that guideline expressly includes conspiracies like the section one hundred sixty three violation a issue here and that alone is sufficient to make clear that the conspiracy at issue if you look to to the one point one not two x one point one one b one point three says in the introductory language all enhancements are to be applied based on relevant conduct as defined in this section lastly two x one point one the title says this applies to conspiracy is not covered by another guideline there is a cross reference that says where another guideline expressly covers a conspiracy apply that guideline not to the one point one there is an application note into s one point one that says to the one point one applies so really fundamentally to the court's application this enhanced it was the convergence of one b one point three and the tutti one point one and handsome and there are three different ways under the relevant conduct guideline that there was a factual basis for this enhanced meant one was that importing cocaine using a private aircraft was very much the harm that was the object of this conspiracy they were convicted of participating in this conspiracy and it's clear from the first recordings it's clear before the sting even started in the chats with pepe regarding the totally separate mexican drug traffickers that they were going to use private aircraft to import these drugs that's basis number one basis number two in the relevant conduct guyland there was an existing course of conduct involving drug shipments like this shipping cocaine from venezuela to honduras using private jets that's also reflected in the chats there are statements by compo about having used a g two before their state compact and says at one point i've been doing this since i was eighteen at another point he says to santos pena we've been working from with some other people from where you are what is he saying there santos pena is mexican and can see that by talking to him and then just observing him and he's saying he's confirming on recording we've been working with other mexicans to do this so there isn't a bit another basis to apply this announcement it's the existing course of conduct in any of these individual the phone and statements are unmissable against both of them to apply the enhancement the last of the three bodyguards who knew what was going on and they were going to help me load the plane they were working for cutting a bodyguard or working for a combo in florence and i think it's important to know generally we're talking about these enhanced men's judge praties making fin back to the issue especially agent as notes there are a couple points on that there are other things the court like me to address on that go ahead on that point these opening statements in three different ways open the door to those notes first under the first prong of the rule we say there were arguments by both counsel about recent events that gave special agent a motive to exaggerate to fabricate testimony about these confessions that prove the rule applies to both an expressed charge of a recent motive as well as an implied charge of a recent modem and it was non abuse of discretion by judge crotty to find that these arguments about the sources having been arrested and charged and prosecuted right before the trial began within months of the trial that those themes charged a recent motive in that the notes were admissible on that basis the when the agent tells you what he recalls of those hour long statements a year later you'll have only his word for it without any way to verify what he is saying so that is something that the advisory committee explicitly called out as a basis for permitting these notes and reports to come in when the doors opened and there's some back and forth in the briefs about whether cross examination is required before the doors open i think o'connor makes pretty clear that that's not the case there are some other cases that we say in a footnote on page seventy eight that suggest the same thing there's no requirement in that in the text of the rule that there is something that there's a sequencing here what's necessary is that at some point the defendants have an opportunity to point though that i'd like to make factually about the way that these reports were treated during the trial special agent and solace was the second witness who testified he begins testimony on the first day of the trial we laid the foundation for those notes and reports as to both defendants confessions and we offered them but did not show them to the jury on the first day of that trial all the jury heard was testimony regarding the confessions the reason that we approached it that way that there were two one was that there were still some brewing issues posed by the notes that is the one defendant referring to the other that we wanted to address with counsel that night the other is that it was clear there was going to be additional briefing that night on this issue and so we with we were not able to offer them because they were in a state that they could have been offered and we didn't show them to the jury that night we invoked both prongs of the rule and describe these bases that i've described today that's a these notes and these reports another part and i think is relevant the court's consideration to approach this when we raised this after the opening he heard argument and then there's a point the transcript was what really exciting an literally took the book out he read the rules he read the advisory committee language that i've drawn this court's attention to today and it's on that basis after reviewing the authority and hearing argument that he made the first ruling and then when he hears the defendant's motion for reconsideration he had an opportunity to review briefing from both parties and came back the next day and and and stuck with that rule i would like to address the kendo case which is obviously central to the both defendants arguments about the notes that was a different situation in kanto the balance of the evidence was an agent testified about the interview then the defendant testified about the interview at it was only at that point after there were these two parts of the testimony that the judge will let this report in here the evidence from the government was not limited by a long shot to testimony where these reports about state of mind it's on the recordings both as to actual knowledge and conscious avoidance when the sources say thirteen times these drugs are going to the united states the evidence on this specific issue of intent to import cocaine into the united states was far stronger at this trial than encanto another thing that i think was relevant to the court's analysis encanto was that the prosecutor's only argument there is that there had been a general attack on the agent's credibility that's language that you see in the flores briefs that's language that the prosecutor conceded in this case after the openings there were three separate bases and one of which and certainly taken together open the door to those notes the last part of that i think is relevant to thinking about how canto can apply in this case is the way in which that i r s memorandum was offered in kan in that case because the judge only determined that the memo was going to come in after the defendant's testimony basically the government was permitted to use by the way the opinion reads explain a little bit to the jury pass it out to them and then they took it back into the jury room so having heard the government's witness in the beginning of the trial a defense witness who does the defendant who disputed that account at the end of the trial the case was permitted to close and go to the jury with the government simply handing out this memo saying this is what happened that's not what happened here as i've explained the defendants were permitted to cross examine about the notes and about these reports they were able to challenge it and that's why i just cried and not of use his discretion and in permitting these and to the extent he did that there is harmless because of the other overwhelming evidence of intent most notably the recording your honor i just want to respond to a couple of things that mr beauvais said first the suggestion that the argument that was made during the opening statement by one of the defense attorneys relayed it open the door to this type of mission of evidence doesn't make any sense what was actually said i met you you will hear and you won't have any corroboration right exactly and what was said to jacob's right before the sentence that was quoted by mr bo so while you hear while you will hear much it's just before that says in this case you will see that the dea agent made an inexplicable decision not to record the defendant's statements and the agents did that despite the fact that they had phones and all other kinds of recording equipment at hand while in the private airplane so while you will hear much about the defendant suppose it confessions you will not get to hear different its actual words see their demeanor when they spoke to the agents assessed the conditions of the in f interrogation and generally see whether they were even advised of their constitutional rights the point that was being made by the defense attorney at that point is that the agents who had an astounding assortment of recording quitman have made the express decision not to record the post or a statements and that is actually that actually ties into the third evidentiary error that we talk about in our brief yana that we thought was their problem recording things when you have the drone of an airplane not not not at all your honor not at all it's completely the recording equipment that the da had in its possession was of such high quality that it was capable of recording in loud restaurants capable of recording in any number of settings they had a phone if it was sold on the plane i seriously doubt that they could have understood the conversation which was apparently taking place in spanish as the dea agent was simultaneously translating into english and i would just say your honor is is is limited and doesn't seem technically to play i grant you that i'm sure they could have recorded it and the point was made but i'm not sure was a violation of us of the policy well your honor i would say even if one would debate and i think that the policy should in a been precluded from the discussion about whether or not this was something to demonstrate a bias it wasn't that wasn't that the subject of of questioning from prime witnesses so that the jury knew that there j policy and that is what we were to that is what we were talking about in the section that was quoted by the prosecutor was the women at area that we were allowed to get into was which was just the fact that they didn't record without the underlying information that this that there actually was a policy that we could have argued to the jury required in our view them to record it where you were able to demonstrate and to bring out that they could have recorded it and that they had the equipment to do it we not classically i think you're out of the question comes down to is it appropriate for a district court where there's a critical piece of information like this one rule for all three determination to preclude the defense from putting that for the jury and helping it to be part of the mix of information and determining a piece of evidence as significant as the confessions war the alleged confessions in this case if i can say one more thing your honor you know your honour's try single point we think  goes not only to the not only to the evidentiary issues raised in connection with the airplane enhancement which was clearly improperly put in but it goes to all of the sufficiency arguments we asked the court to take a very strong look at because that's what happened here they just said try cicle over and over and there was no actual evidence of the defendant or knowledge as we set out in our papers appreciate the court's  somehow different that although quinto said having concluded that the memorandum was improperly admitted we do not hesitate to decide that it was not harmless i take it the government is arguing somehow the confession was less central to this case it had other evidence and quinto it was more central like to read to you from the beginning of the government's summation to the jury they spent about a page or two talking about the law and then they say so that's the law let's talk about the evidence i want to start at the end of the charge conspiracy a few hours after the defendant's arrest in haiti on november ten twenty fifteen when both defendants confessed to their participation in this conspiracy then one sentence later if you credit the defendant's confessions ladies and gentlemen then this case is over and the defendants are guilty that's it vole period stop then they proceed to put that d n a report of the confession not transcript experts of a testimony about it the d n a report and they put it up and they spend that doesn't say there's not going to be any other evidence i mean full stop doesn't mean we're going to stop it doesn't but the point on this is if the d n a report was not admissible the argument that it was harmless that it didn't sway the jury is is laughable it that the government said you don't even need to listen to our other evidence you have the confession so if the d n a report shouldn't have come in there can be no harmless ss argument now on the subject of whether it should have come in and the government has said any basis for it coming in was in the defense opening statement first of all you will find no case anywhere in this circuit and the fourth circuit has expressly said you can't do this that says you can open the door in an opening statement the government cites a bunch of cases and we deal with them in our reply brief we set a bunch of cases this court has been clear that you have to see what the impeachment is something can't be a prior consistent statement until you have seen what the impeachment is that is going to in this particular case there was not a charge of faulty memory in the in the defense opening there were maybe three words in there that the government was can't the door be opened and in an opening statement if it conceivably could you know maybe no case that says that but then we that's why we turn the lights and at a minimum would have to be an  express and expressed challenge of the agent's memory there was nothing like that here i mean this can be the first case of this court ever says that and in fact the court has expressly said otherwise has said you should see the impeachment first  there are about three words that the government willfully misinterpreted as a challenge to the agent's memory it was not expressed there was never an express the government interpreted as implicitly challenging the agent's  memory the defense had made clear we're not challenge memory we're saying he was a liar from the beginning we're saying he went into this thing didn't take didn't take a recorder because he wanted to be able to give his own narrative that's fully inconsistent with a challenge to memory you can't say somebody is going to get up there and lie to you and he's going to miss remember we were making to challenge the strategic decision to lie about it from the very beginning two minutes after the defense sat down and the government popped up waving this da reported had been dying to get in the defense expressly disavowed the challenge to the memories and that's not what we said at all your honor we said that he had a motive from way back when to lie about this and he's following through on that motive another thing it would have been nonsensical for the defense to challenge based on faulty memory the d n a report existed the contemporaneous notes existed what defense attorney would say he's going to get up there and he's not going to be able to remember at all knowing full well that they're going to get beat down with this d n a contemporaneous the report there was no challenge to this agent memory the government wanted there to be one so that it could jump in with the implication and put in the report but it simply did not exist and as i said if this d n a report was inadmissible then it is not harmless this court is clearly found that it was not harmless in quintile in the first circuit did the government conceded it wasn't harmless in the first circuit case and the court wholeheartedly agreed concepts for one second on airplane provision speaks in the past tense it says if a private airplane was used they want to do something with relevant conduct and one b one point three i don't fully understand what one b one point three speaks in the past tense about conduct that occurred during the commission of the offense neither of those provisions says it was planned and that's what the ninth circuit said the ninth circuit said the mere fact that you plan to use a plane at some point is not enough the guideline hansen speaks to actually using what it also said the plane has to be used to bring it across the border it can't just be used at some random step along the way why would that why would that be a sound analysis the second part of that  across the united states border because it says a private plane was used to import not a private plane was used to move the drugs from one part of venezuela to another part of the venezuela and from there on no plane was ever used in the import to import export so important or going out of if you're headed to the u s and you take it out of guatemala and bring it into mexico and then take off again i think your honor that that that it's fairly clear that the guideline is speaking to importing into the u s and exploiting from the u s and that those terms import and export don't just mean between two internet and some international border somewhere else in the world and here there was no importation there was and it was never even planned to be with a plane if there had been importation to the u s those guidelines and the relevant kind of guidelines talk about past conduct that occurred there are very clear about that if i'm not pressing my luck i would say one thing about conscious avoidance but go ahead ship drugs to central america then you are in some sense trying to avoid knowing where they're going that was in the experts testimony his testimony was people who know about this argument was that's not our clients but people who know about this ship to the central bring that weighed down very very close actually to the to the actual sentence that was given and it would be impossible to call that error harmless we just don't know what he would do when i went through the yes that's correct the guidelines