your honors in my oral presentation i'd like to address two issues first i'd like to address the question of the jury instruction in the court case on entrapment and second i'd like to address the issue of speedy trial the model search instruction what actually happened was the government made a submission of jury instructions which included the model ninth circuit instruction and that was then actually filed so it's not actually in the record th objections related to other portions of the entrapment instructions so clearly there was a lot of objections to this instruction that the instruction itself goes on for almost two and a half three pages so it's a very lengthy instruction instruction affectively did was it cut off the just the jury's deliberation on that point because the government usually provides an opportunity they certainly did provide an opportunity in this case and there was no further pointed out that his rights had been violated because the court had failed to make any findings whatsoever during this period of january two thousand and eight two thousand a period of five months everybody leapt on this motion and many nobody knew it was pending everybody had forgotten about it it had nothing to do with the trial date but everybody leapt on it and said well you know what there's this h one after exclusion and now it's two years of time from this filing to the time in which it w points to make about gorman the first is that i think you can read gorman it's possible the requirement and there's a line at page one hundred fifteen of the opinion and it talks about motions that are decided after a motion decided after a trial can exclude time which which by the way it george doesn't actually say because george well which george well if these cases can be read that way the problem is that it's truly in a logical result because there are so many emotions that have nothing to do with the trial date that have nothing to do with causing a delay in the trial date but that properly venue to be in any district in which the package may indeed pass in this particular case it's no quite lawyers no question that all the activity in the conspiracy or the the was that the packages for some shipments went through the port aventura in oakland they were shipped to express mail or federal express from the far east and came in fair and is it proper to have a venue properly placed just where the packages circum were for two years late may go through the port port of entry there are many ports of entry in california in fact in this case there was evidence that there was a port of entry that the packages might have gone through in anchorage and that that's it would that goes to the the count thirty three december shipment for which the open port of entry there's no record of that package going through and i submit to the court that connection to the northern district of california the only connection later on was where were some phone calls were made to relate not to these but specific counts but because the mr may question of it's a question of relevant conduct because count thirty three has is the importation of the i guess the most valuable animals for purposes of relevant conduct so that's true but it's still the prosecution would have to prove by a preponderance of the evidence and the question is whether they can use that and i guess that relates to the second issue in terms of relevant conduct in this particular case the issue is that what  is should my client have been responsible for all six shipments it's clear from from the evidence presented the trial is only charged with three of the shipments three to six the other three were charges against him yet for sentencing purposes he was found to h the foreseeability is this what are these other three shipments foreseeable to him and the answer is how could he be foreseeable if they were specifically going around him by using these other methods and so going back to the for this the question is that in terms of the count thirty three and the other counts that the other shipments that were used were talking a substantial difference in and relevant conduct we're talking value and if we eliminate the other shipments were down even further so all this does make a difference in terms of spending  covers the same harm i mean is the objection below was the fact that mr pollution was in it for a peculiar gain there's no evidence that he profited or was intended to profit by by his role in this offense that was overruled by the court in the court said well yes you get the p q narry gain unhandsome and plus you get the market value and that's the same harm it addresses the same harm and in is he being punished twice not only for the market value which includes you know that the  compared to the others in this case if we if we talk about the other defendants there's mr wong there's mr lewis there's mr burroughs all these people were the kind of the alleged core of the of the conspiracy to import animals into the united states the mr miller and mr looping who who were treated differently they were cooperating witnesses in this particular case we can we could a limited  guess from the from the mix a little because they were treated a little different because their cooperation status of the other defendants my client is certainly the most minor participant in this offense could his activity was allegedly to attempt to he attempted according to the evidence he attempted to recruit and they all said no they didn't dick took no action and in fact mr pollution other than the picking up of the december nineteenth ninety seven package had had really nothing didn't pick up the animals didn't miss directed back to just in any way for any other shipment not the shipment not the obvious ship makers that just didn't go anywhere it was tempted to be delivered by another person and came back and the animals  up and deliver it to mr miller's and mr lewis's residence so in terms of activity mr pollution next to nothing in terms of activities in this he should have least the been granted a minor to a minor participant speedy trial act issue as the court knows there's been two different issues raised as to the speedy trial act and i believe that this morning mr lewis has only focused on the one of the pending pretrial motion that motion dismiss went back and said that that period was specifically covered by the exclusion h one half because that exempts any period of delay resulting from any pretrial motion how do you count for the delay for the sequential in resolving the motion that created the potential for abuse but the supreme court starting direct legislative history on that issue said that any for potential for abuse should be policed by local court rules rather than by the speedy trial act because the motions made by the other son but there could be a court rule though that i'm saying there are a number of different ways in which local courts could follow the supreme court and congress has mandated me having a little trouble following the argument maybe if i can just play you set the pretrial conference we'll file them for ninety days or sixty days in advance so that's what they're ready for disposition of the conference but we will not file them until your honor sets for pretrial conference and then the trial is not scheduled for say three says i've got this motion on non sequential testimony i'll take that up at the pretrial conference and by the way any way occasioned by the filing of this motion is excludable that's not a violation and the i couldn't decide it then i didn't have the information and we have this judge in the next case and he was certain instancing who was corn and who was changing and it turns out he was dead wrong well here i think you can actually look at the record and see that there are a number file a motion to severance how very late in this proceeding and in fact specifically said that he wasn't going to file such a motion there was a very complex legal scheme that was thousands and thousands of pages of records i don't  from the same place and going to the same place or what have been for example in the states or cases you have a series of drug transactions moving from florida to chicago and one of them there was no evidence about where the transact where all the where you have the other shipments coming through oakland i think it was perfectly reasonable for the court to find again by a preponderance of the evidence that the shipment would have done the same now that in the alternative we have to still turn it of argument about the aiding and abetting that lewis committed by spending the money for the shipment through through this district so there's two independent means by which you could find i never had a counsellor and that smuggling  in our brief market value of wildlife is related to a number of that to the extensiveness of the of the scheme and doesn't if it doesn't go to the same factor as the otherwise commercial purpose his argument as to being the minor early on was telling agent morris some that he was coming up with a scheme with pollute shows that he was and intimately involved in the planning of the scheme and second the fact that he was out recruiting people and the fact that he was unsuccessful in recruiting people i don't t which speaking a standard of review in my last forty seconds just to go to the entrapment instruction issue was clearly a plain error the fact that he raised other objections to the same instruction had nothing to do with with this issue and the fact court pointed out the difference between what's at issue here which is the question of whether or not the right results from a motion pending motion and whether or not that delays unreasonable and i'm quoting from page or the proper disposition of the motion whether or not the delay in holding that hearing is reasonably necessary where it will commencing the trial results from the pendency of the motion as one the district court holds off trial and hearing on the motion t delay will ultimately automatically be excluded from the speedy trial accusation no matter how unreasonable or unnecessary that delay might seem that is the difference here in henderson there were a number of motions including a decided at the final pretrial and there are a number of other motions that under the government's reasoning are going to exclude time for five years ten years fifteen years motions for instance to have the defense investigator sit defense counsel table three false labeling counties acquitted those counts so we've challenge on venue ground all that the counts of conviction which is the smuggling and the conspiracy count in terms of the issue minor  the issue is whether your minor compared to other people in the conspiracy that the charge the defendant in the indictment were louis ask your shoe was a fugitive but he was one of the major smugglers in the far east mr wong who allegedly was the largest miller these were the defendant they were charging mr miller for which my client was compared with mr miller was a person who benefited from the scheme he was involved in at least four of the shipment he was a prime mover stole the animals that he