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Case number 24-3-07, United States of America versus Raul Flores-Renandes, also known as Altio, appellant.

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Mr. Feitel for the appellant, Mr. Booth for the appellant.

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Good morning.

[00:00:15] Speaker 04:
Good morning.

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May it please the court, Robert Feitel for appellant, Raul Flores-Renandes.

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Your Honor, I'd like to reserve two minutes for rebuttal in this case.

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During the course of my argument, I am principally going to focus on the argument made in our briefs that the government failed to adduce, even by a preponderance, sufficient evidence to establish the leadership enhancement which was imposed on the defendant in this case.

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If the court were to agree with that argument, then it would not have to resolve the issue as to whether or not my client was eligible for a zero point defender reduction under 4C 1.1.

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And in theory, the defendant would have the opportunity to have his guideline sentence reduced from the 39 calculated by the trial court to 31 because he would be safety valve eligible under that.

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So with that in mind, I wanted to note, I think it is pretty well established, and I don't think it's really disputed between the parties what leadership requires under the sentencing guidelines for a four-level enhancement.

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And the parties have not offered alternative definitions of what's required.

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It's simply that there be the exercise of power control in a hierarchical way over someone else in the conspiracy, and that the organization consist of five persons or more be otherwise extensive.

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And the part that we have focused on in our briefs, which I want to address with the court this morning, is the issue of leadership in terms of power over other people.

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I just wanted to note before talking about some of the details that Mr. Flores Hernandez was charged by indictment with being the leader of a drug trafficking organization called the Raul Flores drug trafficking organization.

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In the district court, there are no co-defendants.

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No one else was arrested or charged in this case.

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And as far as we can discern, no one else has ever been charged in a federal district court case anywhere, not in this jurisdiction or otherwise, who is alleged to be a member of the drug trafficking organization that goes by his name.

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We think it is a drug trafficking organization of one.

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And we think that is the problem.

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We think that fact caused the government an insurmountable problem in trying to prove that he was the leader.

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Wasn't there testimony by a cooperator, Pinedo?

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He was asked approximately, how many people in total did you see working in the Defendants Cocaine Trafficking Organization?

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And he said about 20 people, including around five bodyguards.

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Wasn't that enough?

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First, Your Honor, what he said was they worked.

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Later on, we clarified his testimony.

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And what he said was they worked with him.

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Not for him.

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It is in...

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It is in the record.

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I'll come up with the page in a minute.

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They worked with him.

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It is in the joint appendix at page 403 to 404.

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But independent of the notion that he worked for them with them, I don't think, and I don't think the case law supports the idea that the mere recitation of a list of people is a sufficient factual predicate to find that there's leadership.

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First of all, it's too facile.

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But the question was, how many people did you see working in the defendant's cocaine trafficking organization?

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And the answer was 20.

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Why is that not enough?

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Because, well, first, later, he clarifies to say that he was that they were working with him and not for him.

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And I think that the law demands more than a list of people as having worked for you.

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There's no identification of what anyone did.

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And more important, to the extent that leadership requires both the exercise of authority over others, there's a recent Fourth Circuit opinion that says that it requires proof that someone followed your orders as well.

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I think as to both aspects of leadership in this case, the government's proof failed.

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There was not a single witness who testified that Mr. Flores Hernandez gave an order to anyone.

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or that anyone ever followed it.

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So if merely listing a group of people as working for him does not appear to be to us sufficient under the requirements of the guideline to establish leadership.

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And I think that's because no one worked in his organization.

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Can it also be inferred from other testimonies such as Pinedo testifying that he worked with Flores Hernandez to store more than 53,000 to 56,000 kilograms of cocaine?

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help transport 50 million dollars in drug proceeds for Flores Fernandez and he helped collect 14 million to 17 million in drug proceeds for Flores Fernandez.

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Can't you infer that they were working for him or that he had a cocaine trafficking organization just from the quantity and the scale of that enterprise?

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So in response, I have two responses.

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One, in the joint appendix at page 445, Mr. Pinedo Alvarez Carrillo says, I wasn't a part of this conspiracy.

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He specifically and particularly disavowed being a member of any conspiracy.

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By his testimony, he was simply present watching the goings on.

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So I don't think that puts him in a subordinate position sufficient to establish

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um that he was a member of the conspiracy but more to the point your honor there there's nothing to say what the issue of drug quantity and how big mr flores is obviously weighed large in the district court's decisions about this but there's no case law there's no jurisprudence that says simply because you were a large trafficker you were automatically a leader i think to the contrary the cases are that labels are not enough

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And that even if you were an intermediary, it's not enough absence on exercise of control.

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So I don't think that under the controlling case law and under the provisions of the guidelines, the mere fact that you were large, or that you were involved in lots of cocaine or lots of money movement, automatically, without more, it makes you a leader.

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And I think there is nothing more in this record.

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It was clearly erroneous, that this factual finding was clearly erroneous.

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And I just don't see why, even if it's not perfect or precise, this isn't enough.

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I can try to articulate it again, but I think that what happened, I think the district court articulated the right standards and the judge understood what the requirements of the law was.

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But I think in order to make the leap between the evidence that was presented, which I think really was a positive evidence, and the conclusion of leadership, the judge specifically said to, it's a matter of common sense.

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And that's what she said in her findings on the day that she ruled that my client was a leader.

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And I would be hard pressed to say that we don't think that judges should exercise common sense in the rulings that they make.

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But I don't think it's a fair substitute for a failure of proof.

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And I do think there was a failure of proof here.

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And I want to go back to that point.

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Nobody who testified, none of the three government cooperators that were involved in drug trafficking, and they were extensively involved in their other businesses, not a one of them said that they worked for the defendant.

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They were pretty clear.

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And Mr. Pinedo,

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Alvarez eschewed being involved in the conspiracy.

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Mr. Jackson away, I'm a gay.

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He said, I never worked for the defendant.

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And the third witness who's named Elpedio Mahara, he was the leader of his own independent drug cartel.

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That was one of the largest operating in Mexico.

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So I think that the failure of the government to identify anyone who actually worked for Mr. Flores, was failing to prove sensei Otto, Chani, Chacharro and Enriquito.

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those are people for sure that were identified by the witnesses as working for the defendant and have the government at the hearing said to the witness well what did you did you ever hear putting aside the leading nature of the question which there was problematic in this hearing but if the government had said to the witness were you ever present when mr floris hernandez gave an order to lincenciado

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And you can imagine the follow-up, yes, I was, no, I wasn't.

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What did he say and what happened?

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There is none of that in the record of this case.

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That's necessary.

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I do think it is necessary.

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Otherwise, it opens the door.

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I'm troubled, if you've read the briefs, I'm troubled by

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the nature of the cooperators and what I see is their incredible motivation to fabricate or at least to exaggerate because they were beholden to the government for their liberty and for so much more.

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And they were all, one of them was paid $100,000.

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But more to the point, if merely listing who you think worked for the defendant is sufficient, then it really does open the door to people

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basically fabricating testimony against others.

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And I'm troubled by it in the main, but I'm specifically troubled by it here because there was no follow-up.

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I mean, it wasn't as though the witnesses weren't in front of the trial judge and the government had every opportunity to ask.

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And they didn't ask.

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And to be absolutely clear, my colleague and I, we did not follow up.

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We did not open that door to try to help the government.

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I assume the reason the government didn't ask the witnesses is because the answer was they didn't know.

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And the lincenciado, I mean, the actual translation is college graduate.

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It sort of also can be used to be an attorney.

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We have actually one lincenciado in the court today.

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But merely saying,

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A, B, C, D, E, and F, and G worked for the defendant seems to be a wildly insufficient predicate for proof of the essential elements of leadership, which is control over another person.

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If we can assume that those four or five people, Chani, Chikaro, Luciano, Alfaro, and Rikito, worked for the defendant,

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I don't understand why it wouldn't follow that they were taking orders from the defendant.

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So in the first instance, Your Honor, we do not concede, oh, I've managed to beat into all my time.

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We do not concede that they worked for him.

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And I think one element of that... The witness said they worked for him.

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But without... And the district judge believed the witness.

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Even assuming, for argument's sake, as lawyers always say, saying that someone worked for Mr. Flores Hernandez is not the same as saying that he gave them orders.

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I mean, the guideline doesn't say that you're a leader if you have an organization.

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It says you're a leader if you directly exercise control over someone else.

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Just to take one example, Luis Siano paying people who worked at the docks, paying them for Flores.

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Why would he have done that if Flores hadn't told him to do it?

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I think the answer is the naked response is the government should have asked, why did he do it?

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Were you ever present when orders were given?

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Have precedents saying circumstantial evidence is enough for this sentencing guideline?

[00:11:23] Speaker 04:
Yes, circumstantial evidence would be enough, I think, had there been more than the mere recitation of the names of people, Your Honor.

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It seems like either they were doing it because they were told to do it, or they were, I guess, like doing it out of the goodness of their heart.

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It's sort of like a service project.

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It seems implausible that you transport money for a drug trafficker

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for any reason other than you were told to transport the money.

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I will offer a completely, I believe, valid alternative theory.

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Drug trafficking is no longer soups to nuts.

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It's no longer one cartel controls everything from their production in Colombia to its distribution and transportation.

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People use money launderers and they act as independent contractors who do the work.

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It could very well have been that Mr. Flores Hernandez contracted with someone to move the money.

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That person did it.

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And to facilitate his independent conspiracy to money launderer, he bribed people at the ports or elsewhere at the airports to get it done.

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But that doesn't, without more, suggest that my client ordered it to be done.

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So I just want to see if

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what alternative scenario there is.

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You might disagree with a bit of the premise of this question, but I'd ask you to kind of go with what I'm assuming.

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I'm assuming that Flores ran an international drug trafficking operation for 30 years that transported tens of thousands of kilos of cocaine worth millions and millions of dollars.

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Did he walk all that cocaine across the border himself?

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During the defense, the answer is no, he did not.

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I don't know where... He had to have people working for him to pull off that 30-year multinational operation?

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There are two responses.

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One is of record, which is that he had a business that worked with what they call black market.

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black market goods.

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During the defense case, we put on the testimony of his attorney, Murillo, and he said that the defendant had a business selling black market refrigerators and other household goods.

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And so it could have been that the money was laundered through that aspect of the business, but it's not entirely clear.

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And I don't think the burden is on the defendant

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to prove where the money went or how it was moved.

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Anyone knows on this record, which is what matters in this appeal, is it could have stayed where it was in the United States.

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The cocaine could have been sold in Mexico.

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They didn't do any deep dive into what happened anywhere, because the people that they present to the government's witnesses didn't work with Mr. Flores.

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They didn't work for him, and they barely worked with him.

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They were one-off events.

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I think that's the fatal aspect of the government's case for approving leadership.

[00:14:25] Speaker 04:
It's that there is no, Your Honor, just again, it wasn't as though the government didn't have three witnesses up on the stand, and it wasn't as though they were precluded from asking.

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They didn't ask the questions that in your to the elements of leadership.

[00:14:44] Speaker 05:
As I understand it, there's at least two elements of the sentencing enhancement.

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One is the organization has to be

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five or more participants or otherwise extensive.

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And then a second element is that the defendant has to have been in a position where he was telling at least one person what to do.

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Are you are you fighting both elements as as to the as to those issues?

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I think the, the evidence of how many people work for him is de minimis at best.

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Because it is nothing you can satisfy that 1st element with with simply an otherwise extensive operation.

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You don't think this operation was.

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as extensive as an operation with five participants?

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If the government had induced evidence, perhaps I would be in a different position.

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But the government didn't ask any of the details about how this drug trafficking organization allegedly worked.

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It had the one-off witnesses who were involved in discrete events, and there was no overview.

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And that flows back to the primal point that I'm trying to make is they were proving, the government proved this case with people who were not involved with Mr. Flores Hernandez.

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And I think that failure prevented them from proving, even by a preponderance, that he was a leader.

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There's some evidence that his son was involved in the operation?

[00:16:00] Speaker 04:
There was a reference to his son.

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Who did his son work for?

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On the record, I believe there is a reference to who his son worked for, and I believe that the answer

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Is a matter that I'm not able to disclose completely in this public forum, but suffice it to say there was no evidence of record that his son worked for him in this organization.

[00:16:25] Speaker 03:
Okay.

[00:16:25] Speaker 03:
My only final comment is it seems that you're you're saying that we need to have direct evidence and circumstantial evidence will not do.

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And is there authority for this?

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I would be hard pressed to argue that circumstantial evidence is not enough because everyone who's ever been in a courtroom has heard the instruction about circumstantial evidence being sufficient.

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What I'm saying is that this

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variance of circumstantial evidence is insufficient.

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If simply naming names without further elucidation, I don't believe that naming names without further elucidation carries the burden of proof, even by a preponderance in this case.

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And again, if there was something here, you would have thought that someone from the government's prosecution team, three different prosecutors examined these witnesses, somebody would have said, hey,

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It's not as though the definition of leadership changed somehow right before this sentencing hearing.

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I mean, it's been pretty constant throughout.

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You would assume the prosecutor's new.

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No one asked.

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And I think it's their failure of proof because it's their burden of proof.

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And that's where we end up in this case.

[00:17:29] Speaker 04:
So I have gone over.

[00:17:32] Speaker 01:
That's OK.

[00:17:32] Speaker 01:
I just had two questions.

[00:17:34] Speaker 01:
So one on the same topic.

[00:17:36] Speaker 01:
There was testimony from Alvarez Correa about this enriquito delivering money and saying it was on behalf of Mr. Flores Hernandez and then unpacking cocaine as well.

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So that's much more specific than just a list of names.

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Those are actual activities and at least testimony that someone said they were doing it for, not with, for Mr. Flores Hernandez.

[00:18:06] Speaker 01:
Why is that not enough?

[00:18:08] Speaker 01:
Is there something I'm missing?

[00:18:09] Speaker 04:
I think in the context of the way the evidence came out, it was not entirely clear even from Pinedo, Alvarez-Crayo, that they were with, for the defendant.

[00:18:18] Speaker 04:
He later, it was somewhat murky, but at the end, he does say they didn't work for him, they worked with him.

[00:18:24] Speaker 04:
And again, if unpacking the cocaine had been at the border- He said that for Armaquito too.

[00:18:30] Speaker 04:
Excuse me, Your Honor?

[00:18:30] Speaker 01:
He said with him for Armaquito.

[00:18:33] Speaker 04:
If they had provided some context and some detail, maybe it would have been.

[00:18:37] Speaker 01:
Did he say only worked with and not for support?

[00:18:43] Speaker 04:
I have to look back at the record, but even assuming that he said he worked for him without context, it is impossible to conclude that it was a leadership is living money and unpacking cocaine.

[00:18:56] Speaker 04:
That would be a job that lots of people have who don't work directly for the defendant, because as I mentioned before in response to Judge Walker's questions, trafficking is diffused.

[00:19:08] Speaker 04:
It does have different people.

[00:19:10] Speaker 04:
This could have been resolved.

[00:19:13] Speaker 04:
This could have been easily resolved with questions that probed into who, what, when, where, why, and how.

[00:19:18] Speaker 04:
None of that was elicited.

[00:19:20] Speaker 04:
That required the district court judge to sort of resort to the, well, common sense tells me that because of the quantity, he must have been a leader.

[00:19:29] Speaker 04:
I just want to point this out.

[00:19:31] Speaker 04:
Let's assume in a hypothetical that there's been a lot of press lately about the United States blowing up what they call fast boats in the Caribbean off the coast of Venezuela.

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But there are lots of other defendants who were caught on those boats under the Maritime Drug Law Enforcement Act, the MDLEA.

[00:19:48] Speaker 04:
So under the judge's thinking, if you were a member of a crew and you were in a fast boat that was traveling under cover at night and there were 300 kilos in the boat, that you would also be a leader if quantity is the sine qua non of leadership.

[00:20:02] Speaker 04:
That obviously is not the case.

[00:20:04] Speaker 04:
People that are members of those crews are the lowest ranking levels of the conspiracy.

[00:20:08] Speaker 04:
Although I should say that there are times when boat members become leaders, too, by simply saying to someone else,

[00:20:14] Speaker 04:
Could you get the tuna and the water for the boat crew?

[00:20:18] Speaker 04:
But I think the government is obliged.

[00:20:22] Speaker 04:
This was the case in which we contested all of the guidelines.

[00:20:24] Speaker 04:
This was not just this one.

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We contested a lot of the other ones, and we had success.

[00:20:28] Speaker 04:
But I sort of felt like the judge was going to give one for the home team.

[00:20:32] Speaker 04:
But I think that the government has the burden of proving these matters.

[00:20:36] Speaker 04:
I mean, they allege that it was true.

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And I think this is

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To the extent that there were any sort of single points of evidence about this issue, even whether considered solely or independently or collectively, I don't think they rise to the level even of preponderance in this case.

[00:20:55] Speaker 01:
And I just had a question on the drug weight that you had contested in your brief.

[00:21:02] Speaker 01:
But Mr. Flores Hernandez led to selling cocaine up to 450 kilograms.

[00:21:08] Speaker 01:
So why do we have to get into that whole issue of who should be credited about what just on the drug weight?

[00:21:16] Speaker 04:
I'm going to leave it to the briefs.

[00:21:17] Speaker 04:
I understand your honor's point.

[00:21:19] Speaker 04:
I think it is 450 or more.

[00:21:20] Speaker 04:
So it was within the range that he agreed to in his statement of facts.

[00:21:26] Speaker 04:
And I did not make much in my rebuttal brief nor hear about quantity.

[00:21:31] Speaker 01:
OK.

[00:21:31] Speaker 01:
We'll give you a few minutes for rebuttal.

[00:21:35] Speaker 01:
Thank you.

[00:21:35] Speaker 04:
Thank you, Your Honor.

[00:21:45] Speaker 06:
May it please the court?

[00:21:48] Speaker 06:
The district court correctly found that Flores was the leader or organizer under Section 3B1.1A.

[00:21:54] Speaker 06:
And there's three primary interrelated reasons for that.

[00:21:59] Speaker 06:
I'd like to start them in sequence.

[00:22:01] Speaker 06:
Flores was a major cocaine trafficker.

[00:22:04] Speaker 06:
He was responsible for 53 to 56 kilograms of cocaine.

[00:22:07] Speaker 06:
And he paid a portion of those proceeds to the Sinaloa cartel.

[00:22:11] Speaker 06:
The district court found, and this is on page 246 of the Joint Appendix, that Flores had deals with multiple high-level drug dealers for hundreds of kilograms of cocaine.

[00:22:25] Speaker 06:
That fact, which in our view is not clearly erroneous, maps into the decision-making authority

[00:22:31] Speaker 06:
the claim to right to a larger share of the fruits of the crime, and the nature of the participation in the offense factors in application note 4 to 3B1.1A.

[00:22:43] Speaker 06:
Second, the district court found that Flores discussed supplying planes for drug dealing to Ramirez, and they also discussed drug shipments involving kilograms of cocaine in January 2017.

[00:22:57] Speaker 06:
That's a joint appendix 221 to 222.

[00:23:02] Speaker 06:
That fact maps into the exercise of decision-making authority and the planning and organizing the offense factors in application four to guidelines 3.1.

[00:23:15] Speaker 01:
I think the prong that they're contesting is the demonstrated an exercise of leadership over at least one person, which I don't think these points go to.

[00:23:25] Speaker 01:
So I think that's the one that we've been focusing on, unless my colleagues feel otherwise.

[00:23:33] Speaker 01:
As to that, this was a very strange case for the government.

[00:23:37] Speaker 01:
I mean, as you said, there were no witnesses.

[00:23:41] Speaker 01:
Despite this very, very vast organization, there wasn't a single witness who said, I worked for him.

[00:23:49] Speaker 01:
And the testimony, maybe some of this was translation issues, I don't know, but it's the government's burden.

[00:23:56] Speaker 01:
was really rather elliptical, whether people were working with him or for him.

[00:24:01] Speaker 01:
And you had witnesses who, again, themselves only had sort of fleeting interactions, if at all, with Mr. Flores Hernandez, and then were sort of elliptical in their testimony.

[00:24:18] Speaker 01:
So it just seems to me that

[00:24:21] Speaker 01:
Very strange, and it's so big that the government couldn't find one person that actually says, I worked for him.

[00:24:27] Speaker 06:
That was going to be my third point before I get into that.

[00:24:30] Speaker 06:
That's all right, Judge Millett.

[00:24:31] Speaker 06:
The question that has been raised about whether I worked for him or with him, I would like to quote from the transcript to point out exactly how that came out.

[00:24:42] Speaker 06:
And this is on JA 403.

[00:24:45] Speaker 06:
And it said, did the defendant have workers or people who worked for him who would receive his portion of the cocaine?

[00:24:51] Speaker 06:
The answer is yes.

[00:24:54] Speaker 06:
Now, you go back to the next page, and then the question is, were any of these people related to the defendant?

[00:25:02] Speaker 06:
And it's at that point that the witness says, no, they worked with him.

[00:25:06] Speaker 06:
Well, our submission is, is that particular with him really doesn't count for a whole lot?

[00:25:13] Speaker 06:
Because the question that was being asked to him at the time was, were these people related to him?

[00:25:19] Speaker 06:
This witness wasn't being asked to give a formal definition between workers for or with, for purposes of deciding whether or not there was supervision under 3P1.1.

[00:25:29] Speaker 06:
So we give absolutely no weight, and we think the district court properly gave that no weight, even though he didn't do it directly, in discounting the they worked with him sentence.

[00:25:39] Speaker 06:
Again, that's on JA404.

[00:25:41] Speaker 01:
We also have to show, to get this leadership enhancement, that the person that was managed

[00:25:46] Speaker 01:
um, that he was the leader of, um, was a participant in the enterprise and participant has a specialized meaning that is you have to show that every element of the crime, including mens rea was meant, meant as to those persons.

[00:26:01] Speaker 01:
Where did the government do that?

[00:26:03] Speaker 06:
There was a lot of circumstantial evidence that many of the workers for Flores knew what they were involved with.

[00:26:09] Speaker 01:
So when you have someone say 20 people worked for him, that doesn't do anything to establish the element as to any individual, including, of course, most particularly, Mens Rea.

[00:26:19] Speaker 01:
A lot of people could work for someone in other capacities, errand boy, bodyguard, without knowing what the operation is.

[00:26:26] Speaker 01:
So what evidence is there of Mens Rea as to one of these participants?

[00:26:30] Speaker 06:
Well, I am talking about there are two particular facts that are involved here with respect to supervision.

[00:26:36] Speaker 06:
He supervised Pinedo, who not only cleaned the tanks containing the cocaine that was delivered to Flores and his brother, and that's a factual finding at 215, but he also shipped it.

[00:26:48] Speaker 06:
50 million dollars in drug money back to Colombia for Flores.

[00:26:54] Speaker 06:
And that's a finding on JA 216.

[00:26:57] Speaker 06:
Now, if Pinedo was shipping 50 million dollars back to Colombia, he knows what he's in for.

[00:27:02] Speaker 06:
You're not shipping 50 million.

[00:27:04] Speaker 01:
Did Pinedo work for him?

[00:27:05] Speaker 01:
Did he say he worked for him?

[00:27:08] Speaker 01:
He had his own sort of

[00:27:10] Speaker 01:
They were sort of working with each other.

[00:27:11] Speaker 06:
But remember, Pinedo stated that he was cleaning the tanks and of the tanks that came out of the cocaine that was coming out of the tanks, half of it went to one of his relatives and the other half went to Flores.

[00:27:27] Speaker 01:
I get that.

[00:27:27] Speaker 01:
I'm just asking if you can point me to the testimony record where Pinedo says,

[00:27:32] Speaker 01:
I worked for Mr. Hernandez, as opposed to I had my own operation.

[00:27:41] Speaker 01:
This is what I did.

[00:27:42] Speaker 01:
I got stuff in and out of these boats.

[00:27:43] Speaker 01:
I had my relationships on the docks.

[00:27:45] Speaker 01:
I got it out.

[00:27:46] Speaker 01:
I did this much for this group, this much for this group, which sounds like he's sort of an independent contractor.

[00:27:51] Speaker 01:
But if there's something that says he was for working in that capacity, working for Mr. Flores Hernandez,

[00:28:01] Speaker 06:
I cannot point you to anything in the record in which any one of the three witnesses said that I was working, well, that where Pinedo said I was working for him using that particular language.

[00:28:13] Speaker 06:
But again, the circumstantial evidence is on the one hand, he is cleaning out the oilers, the tankers that contain the cocaine.

[00:28:22] Speaker 06:
of which Flores is getting half of that, and that's 1,000 kilograms per pop.

[00:28:28] Speaker 06:
And then later on, he's shipping $50 million in drug proceeds on behalf of Flores.

[00:28:35] Speaker 06:
And I believe that's the finding that the district court made at J-216.

[00:28:39] Speaker 06:
So if you take those two facts together and look at all the circumstances in this case, I think that the district court's finding a fact that this pinero was working for Flores is certainly not clearly wrong.

[00:28:50] Speaker 01:
Can I just ask one clarification?

[00:28:51] Speaker 01:
Because this might be

[00:28:52] Speaker 01:
I don't know that common law employment concepts map onto here.

[00:28:58] Speaker 01:
So your friend on the other side has said, look, the way these things operate is people all have their different roles and they just have relationships and contract with somebody to do the shipping or collecting the money for them or laundering the money.

[00:29:11] Speaker 01:
Do we know for purposes of this guideline, if you

[00:29:15] Speaker 01:
contract with somebody to, say, carry your cocaine across the border or put it on a ship.

[00:29:24] Speaker 01:
Does that count as working for someone?

[00:29:26] Speaker 01:
Does contractual relationship or do you really have to be what we would in a sort of common law sense think of as an employee?

[00:29:33] Speaker 01:
I don't have any idea what the case law is.

[00:29:35] Speaker 06:
I'm not sure.

[00:29:36] Speaker 06:
This court has said over and over again that you have to have some control over another person.

[00:29:41] Speaker 01:
It has control over people who paint your house.

[00:29:44] Speaker 06:
That is true.

[00:29:45] Speaker 06:
But it has also said with respect to leaders as opposed to managers or supervisors, they're more involved in the strategic planning than the day to day operations.

[00:29:55] Speaker 01:
But I'm just asking, let's say Mr. Flores Hernandez's view is correct that

[00:30:04] Speaker 01:
He had his thing, and then he worked with this person.

[00:30:08] Speaker 01:
You're the launderer, you're the transporter, you're the bribe payer.

[00:30:12] Speaker 01:
And so at some level, they're sort of equal level people.

[00:30:19] Speaker 01:
On the other hand, he's paying them to do something for him.

[00:30:24] Speaker 06:
So does that count if he's paying them again the the words that are used in application note for our control and authority and our submission is is that for imagine is because control and authority include.

[00:30:40] Speaker 01:
having someone agreeing to do work for you, if we might look at it as an independent contractor, but they're still agreeing for you?

[00:30:49] Speaker 06:
I would say there's elements of control there.

[00:30:51] Speaker 06:
And in this particular case, again, we're not talking about Pinedo delivering $2 to the Colombian drug dealers.

[00:30:58] Speaker 06:
It's $50 million that he's doing for Flores.

[00:31:01] Speaker 06:
And I think a district court can find, this is not an edge case, Judge Millett, where you're delivering $50 million.

[00:31:08] Speaker 06:
to somebody.

[00:31:09] Speaker 06:
That person, Flores, has control over you.

[00:31:11] Speaker 06:
And there's another person involved.

[00:31:12] Speaker 06:
I only have 30 seconds left.

[00:31:14] Speaker 06:
There was, for example.

[00:31:15] Speaker 01:
And the court asked straight up the government whether any of the cooperators were working for Mr. Flores Hernandez.

[00:31:31] Speaker 01:
And the government agreed they were not.

[00:31:35] Speaker 06:
I don't have that exactly.

[00:31:37] Speaker 06:
I believe that the testimony that, based on the district court's findings on around 215 or so, J214, that he found that they were working for Mr. Flores.

[00:31:49] Speaker 06:
And one other person they mentioned I wanted to, he definitely supervised Chiklin.

[00:31:53] Speaker 06:
Now, Chiklin was the individual who drove the truck that had the $14 million in drug money that Sinoway had helped unload from the warehouse.

[00:32:02] Speaker 06:
Now, they took the $14 million, they put it in a truck, and it was delivered to Chiklin, who was going to give it to Flores.

[00:32:08] Speaker 06:
While Flores is not supervising Chiklin.

[00:32:11] Speaker 01:
The court said, it's a little indirect, but any of the cooperators were not included in the five because by their own admission, this defendant wasn't their leader.

[00:32:22] Speaker 01:
That's correct from the government.

[00:32:23] Speaker 01:
So the government admits that none of these five cooperators were under

[00:32:31] Speaker 01:
Mr. Hernandez Flores was not their leader.

[00:32:33] Speaker 01:
Flores Hernandez was not their leader.

[00:32:35] Speaker 06:
I would again, the district court made findings of fact with respect to the individuals who were working, whatever the government said earlier, the district court findings are not clearly erroneous.

[00:32:45] Speaker 06:
And again, in addition to the supervision aspect, I'm sorry.

[00:32:49] Speaker 01:
I just want to make sure I've got this right.

[00:32:53] Speaker 01:
If your argument is that one of these cooperators said what he did, that he was working for

[00:33:00] Speaker 01:
Mr. Flores-Hernandez, the government disavowed that, and the district court cannot credit something the district government disavowed.

[00:33:08] Speaker 01:
The district court did credit the testimony of Pinedo and that there was— On lots of things, but not as to whether any of the cooperators themselves worked for Mr. Flores-Hernandez.

[00:33:21] Speaker 06:
The government disavow that the government's our position here is that there was sufficient control and authority.

[00:33:28] Speaker 06:
The district court made that finding and that's not clear.

[00:33:30] Speaker 05:
Where's the district court's finding that the cooperators worked for?

[00:33:35] Speaker 05:
Any one of them?

[00:33:38] Speaker 01:
I don't have that finding right in front of me.

[00:33:40] Speaker 01:
Jay to 43 is where the government says that's right.

[00:33:43] Speaker 01:
They none of them worked for him.

[00:33:49] Speaker 05:
If you can find where the district court found it, uh, Mr. Bruce, I'd still be interested because when we may and maybe that I'll agree on this, but, um, I'm not sure that the government could wave away a fact in the record if the district court then finds that fact, but it's not clear to me that district court even did find the factor saying they did.

[00:34:11] Speaker 05:
So I'd be curious to know where the fact is.

[00:34:13] Speaker 06:
I would have to relook at it again.

[00:34:15] Speaker 06:
I don't have it right in front of me, but I do have again on J 245 and 246 that the district court says that the government names individuals supervised by the defendant.

[00:34:24] Speaker 06:
And then he says that Sinoway testified that the defendant had numerous workers but was unable to name any.

[00:34:30] Speaker 06:
And then the district court then makes the finding at J 246

[00:34:34] Speaker 06:
not only did the witnesses identify by name more than four workers, five workers supervised by the defendant, his narcotics trafficking qualifies as another spy's extensive illegal operation.

[00:34:46] Speaker 01:
So the district court, I think we're mixing apples and oranges here because I think what you're saying is that these cooperators testified about other people who worked for Mr. Flores Hernandez.

[00:34:59] Speaker 01:
That's what the district court credited.

[00:35:01] Speaker 01:
I was just trying to make clear

[00:35:06] Speaker 01:
that the government said, you're not claiming any of the cooperators themselves worked for Mr. Flores Hernandez.

[00:35:13] Speaker 01:
And that's what the government agreed.

[00:35:14] Speaker 01:
None of them did.

[00:35:16] Speaker 06:
I would agree that, again, with respect to Ramirez, Ramirez was not under Flores' control when they discussed it.

[00:35:23] Speaker 01:
All cooperators.

[00:35:25] Speaker 06:
But he was not under his control.

[00:35:27] Speaker 06:
So Ramirez was the leader at one point of an earlier cartel, and he and Flores discussed planning to... Mr. Booth, I don't know why you're disputing this, because it doesn't matter, does it, whether the cooperators worked for him, as long as somebody did.

[00:35:43] Speaker 03:
Well, I agree with that.

[00:35:45] Speaker 03:
I may have misunderstood Judge Milet's question, but I think there's... It cost you nothing to concede that the cooperators didn't work for him, but they provided evidence that other people did.

[00:35:53] Speaker 06:
I would agree with that, except I just, I may have been confused by judgment last question.

[00:35:57] Speaker 06:
I apologize for it, but I think there's certainly sufficient evidence here based on the district court's finding that Mr. Flores did supervise a number of individuals in this case.

[00:36:09] Speaker 06:
And it is not the case that the witnesses, the witness testified that they merely worked with him instead of for him.

[00:36:18] Speaker 06:
That was in response to a particular question about whether they related to the defendant.

[00:36:22] Speaker 05:
There you go again.

[00:36:23] Speaker 05:
To Judge Mullett's question and to Judge Payne's question, why not either say the cooperators, there's not evidence in the record that cooperators worked for him, or point us to where in the record the evidence shows, and in particular, that the district court found that the cooperators worked

[00:36:49] Speaker 06:
I will agree with the first one that the cooperators did not work.

[00:36:54] Speaker 06:
I was a little confused by your question.

[00:36:56] Speaker 06:
Sorry about that.

[00:36:57] Speaker 06:
No, no, no.

[00:36:57] Speaker 06:
That was my error.

[00:36:58] Speaker 06:
But I was going to say I would rely again on around pages 245 and 246 of the Joint Appendix.

[00:37:04] Speaker 05:
So do you think as the person who worked for Flores that if you could just pick one person, it's like this person is the best evidence we got that Flores was in charge of somebody.

[00:37:18] Speaker 06:
Well, he was definitely in charge of Chiklin, because Chiklin, for example.

[00:37:22] Speaker 05:
That would have been my guess.

[00:37:24] Speaker 05:
That would have been my guess, because Chiklin.

[00:37:25] Speaker 05:
What did he tell Chiklin to do, and what did Chiklin do?

[00:37:27] Speaker 06:
Yeah, what happened was that Chiklin was responsible for taking the $14 million that Sidoway and his father had unloaded out of the warehouse, and he put that in the truck, and that was going to be delivered to Flores.

[00:37:40] Speaker 06:
So he definitely supervised that individual.

[00:37:44] Speaker 05:
And one of the cooperators said, Chiklin worked for Floyd.

[00:37:48] Speaker 05:
Yes.

[00:37:49] Speaker 05:
And the district, yes.

[00:37:52] Speaker 03:
I also think on JA-408, there's a lot of testimony about bodyguards.

[00:37:56] Speaker 03:
And the question was, how many people in total did you see working in the defendant's cocaine trafficking organization?

[00:38:04] Speaker 03:
Answer about 20 people.

[00:38:05] Speaker 03:
What are the variety of jobs or tasks that they did for him?

[00:38:08] Speaker 03:
They were bodyguards or people that worked for him.

[00:38:11] Speaker 03:
And then,

[00:38:13] Speaker 03:
There was more questions, how many?

[00:38:15] Speaker 03:
There were five.

[00:38:16] Speaker 03:
What, if anything, did they have on them?

[00:38:19] Speaker 03:
I never saw anything on them.

[00:38:20] Speaker 03:
They were talking about weapons.

[00:38:21] Speaker 03:
But I knew they protected him.

[00:38:23] Speaker 03:
That seems to be people that worked for him.

[00:38:26] Speaker 06:
Well, again, the district court did refer to the five bodyguards in his findings.

[00:38:30] Speaker 01:
Is there mens rea?

[00:38:32] Speaker 01:
Did the government have evidence of mens rea, the bodyguards and these other unnamed, funny people that worked for him?

[00:38:42] Speaker 01:
themselves, any one of them individually met the definition of a participant.

[00:38:47] Speaker 06:
There is no direct evidence in the record.

[00:38:50] Speaker 01:
Okay, what's your indirect evidence?

[00:38:51] Speaker 01:
Indirect evidence.

[00:38:52] Speaker 01:
Those bodyguards or the 20 people that are unnamed as to mens rea.

[00:38:58] Speaker 01:
I mean, he could have somebody who mows the grass.

[00:39:02] Speaker 01:
You can have somebody who does the dishes, does the cooking, cleans the house.

[00:39:06] Speaker 01:
And that's normally not going to be enough.

[00:39:09] Speaker 01:
That's not enough for the enhancement unless you can show that that individual met every element of the crime, including mens rea.

[00:39:17] Speaker 01:
I would say it's a fair problem with the vagueness of the 20.

[00:39:22] Speaker 06:
I would argue that circumstantial evidence is if you're a bodyguard for a drug dealer, you probably have some idea why you're bodyguarding him.

[00:39:33] Speaker 06:
Now, again, I will recognize Judge Mallette, there was no direct evidence in the record.

[00:39:38] Speaker 06:
But again, the judges could make emphasis.

[00:39:40] Speaker 01:
Well, you must, bodyguards must know.

[00:39:41] Speaker 01:
The government gets to say, I mean, they could know he's a super rich person.

[00:39:45] Speaker 01:
That's a lot of testimony about his great big house.

[00:39:46] Speaker 01:
He was a super rich person living in a very dangerous area of the country.

[00:39:50] Speaker 01:
But looking at the evidence as a whole- Everyone who has bodyguards is not because they're engaged in criminal activity.

[00:39:55] Speaker 06:
That is true, Judge Millett.

[00:39:56] Speaker 06:
But I think, again, if you look at the evidence as a whole there, they were bodyguarding him at his palace where he was having parties.

[00:40:03] Speaker 06:
And as Flores said, he was bringing in all the drug suppliers.

[00:40:07] Speaker 06:
Again, that's just one little bit of evidence.

[00:40:10] Speaker 01:
Look, there are plenty of celebrities that are going to have bodyguards at their big mansions and their big parties.

[00:40:16] Speaker 01:
It really is the government's job to sew this up.

[00:40:19] Speaker 01:
So I think that is not your strongest ground at all to be relying on for meeting this element.

[00:40:27] Speaker 01:
This government just didn't do anything to sew it up.

[00:40:30] Speaker 06:
Well, again, I emphasize again, as I mentioned to Judge Walker.

[00:40:33] Speaker 01:
Did Judge Powell assume that the bodyguards had mens rea?

[00:40:36] Speaker 06:
She didn't make any mention of that.

[00:40:37] Speaker 01:
So we don't even have a fact finding on that that we can credit.

[00:40:40] Speaker 06:
But as I mentioned to Judge Walker, I think the most important supervisee in this case was Shicklin, because he was taking the money that came from the West.

[00:40:49] Speaker 03:
Where's the testimony about Shicklin?

[00:40:57] Speaker 06:
I believe it's at JA-709.

[00:41:00] Speaker 06:
The finding, I believe, is at JA-245.

[00:41:14] Speaker 01:
We're on 709, or the next page is your best evidence of, I get you got there was lots of money.

[00:41:25] Speaker 06:
If I'm wrong on that, I will correct it in a note to the court.

[00:41:35] Speaker 06:
But I believe that J 245 is where the district court makes the finding about Chiglin.

[00:41:45] Speaker 02:
I guess it says Chiklin was going to pick up the truck and deliver it to Mr. Flores.

[00:41:54] Speaker 01:
Then he said, did you get paid?

[00:41:55] Speaker 01:
And he says, not really.

[00:41:57] Speaker 01:
It was my family business.

[00:41:59] Speaker 01:
I wasn't in the payroll, per se.

[00:42:01] Speaker 01:
It was my stepfather's business.

[00:42:02] Speaker 01:
So it sounds like he was working for his stepfather.

[00:42:05] Speaker 05:
Well, the 50 million.

[00:42:08] Speaker 02:
That's not Chiklin.

[00:42:08] Speaker 02:
That was the witness, right?

[00:42:10] Speaker 05:
Chiklin didn't testify.

[00:42:12] Speaker 02:
mentioned Chicklin.

[00:42:13] Speaker 02:
The witness is talking about Chicklin.

[00:42:16] Speaker 02:
So the witness is his family's business, but he doesn't say much about Chicklin, though.

[00:42:25] Speaker 06:
I do have the citations in my brief with respect to Chicklin, even though I don't have exactly the whole transcript right in front of me at this point.

[00:42:33] Speaker 03:
I was just looking at the

[00:42:34] Speaker 03:
The record as I was sitting here and saw on page J.A.

[00:42:36] Speaker 03:
405, there is some detailed testimony about licenciado and about what he would do on behalf of LTO.

[00:42:44] Speaker 03:
He was in charge of all the loads that would arrive and be delivered.

[00:42:47] Speaker 03:
He was the one that would get a hold of the people that had to work.

[00:42:51] Speaker 03:
He was arranging or getting people to work.

[00:42:54] Speaker 03:
He was a person who would pay everybody at the ports and wherever they would be working.

[00:42:58] Speaker 03:
I guess you can infer mens rea from that.

[00:43:04] Speaker 05:
And my impression is that the vehicle on 709 that Chikwin picked up, he wasn't just picking up the vehicle.

[00:43:12] Speaker 05:
He was picking up a vehicle with $14 million.

[00:43:14] Speaker 05:
Yes.

[00:43:15] Speaker 05:
And bringing that $14 million to Flores.

[00:43:19] Speaker 06:
So our view is that Flores was definitely supervising him.

[00:43:25] Speaker 01:
On 7-Eleven, they call him provider.

[00:43:30] Speaker 01:
Mr. Flores paid his providers.

[00:43:35] Speaker 01:
I already know Chicklin wasn't a provider.

[00:43:43] Speaker 01:
Right.

[00:43:47] Speaker 01:
Right.

[00:43:47] Speaker 01:
It's a chain.

[00:43:48] Speaker 01:
You receive the profit from yourselves and you need to pay your providers and your bills.

[00:43:52] Speaker 01:
It's just another business.

[00:43:54] Speaker 01:
Do you have an idea how Mr. Flores paid his providers?

[00:43:57] Speaker 01:
Everything was in cash.

[00:44:03] Speaker 01:
So I'm back to my question, are providers, do providers count as.

[00:44:10] Speaker 06:
It would depend again on what exactly.

[00:44:12] Speaker 01:
Let's say Mr. I don't know, it's really confusing testimony.

[00:44:17] Speaker 01:
Let's say Mr. Shickland has a business providing.

[00:44:22] Speaker 01:
money delivery services or home paying delivery service, is that sufficient?

[00:44:26] Speaker 01:
Are you aware of any cases that have said that type of relationship, it's sufficient?

[00:44:30] Speaker 06:
I haven't seen anything specifically on that point.

[00:44:33] Speaker 06:
But again, I think in this particular case, the district court could have inferred that when Chicklin was taking that several million dollars in a truck that Sinoway and his grandfather had taken out of the warehouse, that that was drug money and that he was working for Flores at that time.

[00:44:51] Speaker 06:
And that's a perfect example of supervision in this particular case.

[00:44:55] Speaker 06:
In addition to all the other leadership traits that Flores exhibited in this case.

[00:45:02] Speaker 05:
Can you take a look at 7-Eleven, J-7-Eleven, and the reference to providers?

[00:45:09] Speaker 06:
I think they're not saying Chipman was the provider.

[00:45:16] Speaker 06:
I'm sorry, I don't have that record right in front of me on 7-Eleven.

[00:45:20] Speaker 06:
I don't.

[00:45:21] Speaker 06:
J.A.

[00:45:22] Speaker 06:
I don't have it in front of me now.

[00:45:29] Speaker 01:
What did Shicklin do for Mr. Flores?

[00:45:32] Speaker 01:
Answer.

[00:45:33] Speaker 01:
Like everything.

[00:45:34] Speaker 01:
A little bit of everything.

[00:45:35] Speaker 01:
Question.

[00:45:35] Speaker 01:
Do you know what he was going to do with that cash after he picked it up?

[00:45:38] Speaker 01:
Answer.

[00:45:39] Speaker 01:
Not really.

[00:45:40] Speaker 01:
I think just deliver and pay.

[00:45:42] Speaker 01:
I really don't know.

[00:45:45] Speaker 06:
But the whole purpose of having Sidway and his father unload the money to the warehouse was to give it to Florence.

[00:45:52] Speaker 01:
I'm just saying, like, if somebody is working for me, it better be quite clear to them what they're supposed to do with it.

[00:45:58] Speaker 01:
This guy doesn't seem to know for sure what he was going to do with it.

[00:46:02] Speaker 01:
OK.

[00:46:03] Speaker 01:
Any other questions?

[00:46:05] Speaker 01:
Thank you very much.

[00:46:06] Speaker 04:
May I proceed, Your Honor?

[00:46:11] Speaker 01:
Yes.

[00:46:11] Speaker 01:
Guys, we'll give you two minutes.

[00:46:13] Speaker 04:
I will be brief.

[00:46:15] Speaker 04:
I wanted to say that I think this conversation and delving into the sort of really minutiae sort of exemplifies why the government failed to prove a leadership on the part of Mr. Flores Hernandez.

[00:46:27] Speaker 04:
I did want to refer the report to

[00:46:30] Speaker 04:
I believe it's the commentary with respect to the leadership enhancement.

[00:46:33] Speaker 04:
It says that titles are not controlling.

[00:46:36] Speaker 04:
I mean, titles labeling someone boss or chief of operations is not sufficient.

[00:46:42] Speaker 04:
And I think in the same way, the witnesses labeling other people as workers is insufficient, absent some kind of actual predicate.

[00:46:51] Speaker 04:
I read through the Chicklin testimony.

[00:46:54] Speaker 04:
He picked up the money and the witness doesn't know what happened to it.

[00:46:58] Speaker 04:
Even then, it's not clear that that person identified by the nickname Chicklin was working for Mr. Flores Hernandez.

[00:47:06] Speaker 04:
The government could have said, do you know what the relationship was?

[00:47:10] Speaker 04:
Did he work for Mr. Hernandez?

[00:47:12] Speaker 04:
For all we know on this record, he was an independent contractor doing it for his own business, and that he wasn't going to get paid unless he delivered the money.

[00:47:20] Speaker 04:
It is impossible to understand.

[00:47:22] Speaker 04:
As to the original comments.

[00:47:25] Speaker 05:
So hypothetically,

[00:47:28] Speaker 05:
want to like ding the independent contractor analogy here, but I'm not sure it totally translates.

[00:47:34] Speaker 05:
I think in terms of command and control, usually it's the person who receives wages that is being directed, and it's the person who pays the wages who is doing the directing.

[00:47:46] Speaker 05:
And it seems like

[00:47:49] Speaker 05:
This cooperating witness had $14 million that was owed, needed to get transported to Mr. Flores.

[00:47:59] Speaker 05:
And the testimony was Chicklin worked for Flores and Chicklin transported the $14 million from this cooperating witness to

[00:48:08] Speaker 05:
to Flores.

[00:48:10] Speaker 05:
So again, either Chiclin did it because he just likes to drive around for fun, or he did it because Flores was paying him to transport that $14 million of Flores' money to Flores.

[00:48:25] Speaker 05:
And if he was paying him to transport it, which it seems like he had to have been, that's one person who was being directed by Flores.

[00:48:33] Speaker 05:
And it's a participant with the mens rea because

[00:48:37] Speaker 05:
You know that if you're bringing $14 million in cash, very high likelihood it's illicit.

[00:48:45] Speaker 04:
I'm going to disagree as sort of an overarching factual matter.

[00:48:48] Speaker 04:
I do think that the independent contractor analogy is equally likely in the scenario as it is that Chikwin worked for the defendant.

[00:48:56] Speaker 04:
There is an absence of proof as to the nature of the relationship between them other than the vague designation as a worker.

[00:49:04] Speaker 04:
We don't know if Chikwin was hierarchically

[00:49:08] Speaker 04:
Money launderers sometimes are hierarchically superior to traffickers because the purpose of drug trafficking is to collect the money.

[00:49:14] Speaker 04:
If you don't have someone to move your money, you're basically out of luck.

[00:49:17] Speaker 01:
Do you have any case that says, this is what I was trying to ask government about, says that you contract with somebody to do this money delivery or cocaine delivery service for you, that that is not sufficient

[00:49:37] Speaker 01:
Under the guidelines, this is just we're not engaged in employment relationships here at that level of care that we do in civil cases.

[00:49:46] Speaker 01:
And I'm just curious as to why it wouldn't be enough that you hired someone.

[00:49:51] Speaker 01:
And pay them to do this job for you.

[00:49:56] Speaker 04:
So in the appellant's reply brief at page six to seven, I cite a number of more recent cases, including United States versus Martinez.

[00:50:05] Speaker 04:
In the parenthetical, I noted that the court concluded that evidence that the defendant orchestrated drug shipments, was involved in wire transfers, and quote, utilized other persons to mail and receive drugs, was not enough to establish leadership.

[00:50:19] Speaker 04:
And before it is a case from the Seventh Circuit, which talks about how an aggravating role adjustment is not appropriate for a middleman

[00:50:26] Speaker 05:
When you say Martinez, do you mean Martinez Vega?

[00:50:28] Speaker 05:
I just want to make sure I'm on the same case as you.

[00:50:34] Speaker 04:
No, I said United States versus Martinez.

[00:50:36] Speaker 04:
The citation that I have in the brief is 584 F3, 1022.

[00:50:41] Speaker 04:
It appears at page seven of the appellant's reply brief.

[00:50:47] Speaker 05:
Okay.

[00:50:47] Speaker 05:
I appreciate that.

[00:50:47] Speaker 04:
And there's another case that appears on the proceeding page about aggravating roles in middlemen.

[00:50:55] Speaker 04:
I think that the idea that everyone had to delve into the woods or the weeds, so to speak, as to what Chiklon did and speculate, really, because that's what it is on the record before this court as to how he got paid and what the relationship was, is prima facie proof that the government failed to establish the leadership enhancement in this case.

[00:51:14] Speaker 04:
And I have looked at this record.

[00:51:15] Speaker 04:
I participated in these hearings below.

[00:51:17] Speaker 04:
This is the only case I've ever seen in which the government didn't call someone who said, yes,

[00:51:23] Speaker 04:
I'm not saying it's required that you find somebody to work for the defendant.

[00:51:27] Speaker 04:
I mean, obviously, you can't.

[00:51:29] Speaker 04:
No one would have that as an absolute requirement of law.

[00:51:32] Speaker 04:
But if you're going to call someone who didn't, and all that, I reviewed the page that Judge Malette referred to.

[00:51:38] Speaker 04:
The government specifically issued the idea.

[00:51:41] Speaker 04:
that these three cooperators worked for Mr. Flores Hernandez.

[00:51:45] Speaker 04:
So if you're going to call someone outside the parameters of the case, I think it ought to be obligatory on the government to actually prove his case by more than titling people as workers and more than vague generalities about what they may or may not have done.

[00:51:57] Speaker 04:
I think that the law demands more.

[00:51:59] Speaker 03:
You thought the government's proof was so weak.

[00:52:01] Speaker 03:
Why did you guys plead to the information?

[00:52:02] Speaker 03:
Why don't you just take it to trial?

[00:52:04] Speaker 03:
Put them to the burden of proof.

[00:52:05] Speaker 03:
Maybe they had other evidence that they didn't bring up at a sentencing hearing, which is

[00:52:09] Speaker 03:
a different standard of proof, it could be more summary, they might have had other evidence that they didn't bring.

[00:52:14] Speaker 03:
But I don't know that this is relevant at the sentencing stage to say that their proof was not strong because these are cooperatives who did not work in this organization, that they're not required to bring people who worked in the organization.

[00:52:28] Speaker 03:
Maybe they had people who did, but they didn't bring them to the sentencing hearing.

[00:52:32] Speaker 03:
And if you think that the evidence was so weak, why did your client plead to the information?

[00:52:36] Speaker 04:
The client made the strategic decision to plead guilty to the indictment without an agreement because he would not accept the majority of the enhancements that the government tried to insist upon.

[00:52:47] Speaker 04:
That is for bribery, for using airplanes and the like, which the district court denied.

[00:52:53] Speaker 04:
As to the position as to whether or not the government had other witnesses that they didn't utilize for the sentencing hearing, that could very well be the case.

[00:53:02] Speaker 04:
But the burden is on the government.

[00:53:03] Speaker 04:
The burden's not on the defense to disprove it.

[00:53:06] Speaker 04:
The government failed to do so.

[00:53:07] Speaker 03:
Of course, but I'm just saying that the burden is proponents of the evidence.

[00:53:09] Speaker 03:
It's a much lower standard than at trial.

[00:53:11] Speaker 03:
And you come in and say that they had a weak case, but you pledged the indict.

[00:53:15] Speaker 04:
Yes, on the merits for one for five kilograms or more of distribution, the defendant did not admit to leadership in his declaration.

[00:53:23] Speaker 04:
He specifically said that he was an intermediary, which is in the statement of facts that was presented before the district court.

[00:53:29] Speaker 04:
And that's the position that we continue to take before this court, because the government has not proved to the contrary that he was anything more than an intermediary.

[00:53:37] Speaker 04:
And the size of the amount of drugs and the quantity of money that gets moved

[00:53:40] Speaker 04:
is not, I don't think, in the context of the evidence adduced at this particular contested sentencing hearing, sufficient to satisfy the government's burden of proof, even at a preponderance.

[00:53:50] Speaker 05:
The forfeiture that you conceded to would have meant, remember how many thousands, Luke?

[00:53:59] Speaker 04:
No, the judge I think imposed in the millions because it was... Millions of dollars.

[00:54:05] Speaker 04:
Yes.

[00:54:06] Speaker 05:
And then thousands of kilos.

[00:54:10] Speaker 04:
We did not agree to the amount of the drugs.

[00:54:15] Speaker 04:
We agreed to the amount of the forfeiture.

[00:54:18] Speaker 05:
Yeah, but that's just math.

[00:54:19] Speaker 05:
You just divide the amount of the forfeiture by the value of the drugs.

[00:54:23] Speaker 04:
True, but I don't believe that the admission of the acceptance of a forfeiture order

[00:54:27] Speaker 04:
automatically is an agreement to the underlying quantity of drugs.

[00:54:31] Speaker 04:
And we're not really arguing about quantity of drugs here.

[00:54:33] Speaker 04:
The underlying forfeiture, I think, bears nothing on leadership.

[00:54:36] Speaker 05:
In your position, I think the forfeiture is maybe $23 million, but I can't remember for sure, that someone can traffic $23 million worth of cocaine single-handedly.

[00:54:49] Speaker 04:
Is that my position?

[00:54:50] Speaker 04:
Yet you give me an intermediary.

[00:54:52] Speaker 04:
Someone who's a point of contact for buyers and sellers could easily be involved in hundreds of thousands of kilos of millions.

[00:55:00] Speaker 05:
Maybe like the corner boy or the courier on the swift boat.

[00:55:04] Speaker 05:
But I think to be the there's no information that he worked for anybody.

[00:55:13] Speaker 04:
So

[00:55:14] Speaker 04:
I think the record is that he was a cartel of one.

[00:55:18] Speaker 01:
Any other questions?

[00:55:22] Speaker 04:
Thank you very much.

[00:55:23] Speaker 01:
Thank you very much to both counsel.

[00:55:25] Speaker 01:
The case is submitted.