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Case number 13-3051 at L, United States of America versus Arulio Cano Flores, also known as Yankee, also known as Yiyo Appellant.

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Mr. Gilbert for the appellant, Ms.

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Goodman for the appellee.

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Good morning.

[00:00:17] Speaker 01:
Good morning.

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May it please the Court.

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My name is Richard Gilbert.

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I represented Mr. Cano-Floris both at trial and on this appeal, obviously.

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I have asked the reserve about four minutes for rebuttal.

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And while I've been around long enough to know this argument's going to go where you want it to go with your questions, basically, I'd like to spend about half the time on the wiretap issues and about half the time on the sentencing and forfeit issues, if it pleases the Court to go that way.

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The first issue I'd like to take up is the minimization issue concerning the wiretap.

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And I think that basically this issue boils down to which party has to answer the why question.

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And the why question in this case is why did they keep listening?

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If I may explain, unlike the Scott in the Supreme Court case and the Carter case in this court,

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We used a specific methodology at the trial level in which we identified non-pertinent calls that lasted two minutes or more.

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The consequence of that is a number of the factors that the Supreme Court relied on in Scott, where their issue was really, why not minimize, are not applicable.

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Because it's not short phone calls, it's not

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calling the weather, it's not wrong numbers, it's not the person wouldn't come to the phone.

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What it means is that the listening agent had an opportunity to listen to a live conversation for two minutes, give or take, and more in many cases.

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During those two minutes, the agent, him or her, did not come to the conclusion there was anything plainly pertinent.

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Now, we understand that that does not mean as a matter of law, they had to stop and minimize at that point.

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But the question is, why did they feel they needed to keep listening?

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And so it is our view that at the point when we've identified the two-minute calls or more that are non-pertinent, that the burden then shifted to the government to explain reasons coming from context or content as to why that led them to believe that they needed to keep listening to a call that was not readily apparent to be pertinent.

[00:02:45] Speaker 03:
And you had, as I understand it, the names of the parties involved in each call, right?

[00:02:55] Speaker 01:
Well, no.

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In some cases, we never did know who the persons were.

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In some cases, we knew.

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In some cases, we even stipulated.

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See, I thought those lists in the Joint Appendix had a call letter called the... Many of them did, Your Honor.

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But some of them did not, because quite frankly, with the exception of a couple of calls between the fellow we call Manolo, since he used so many other names, and Connell Flores, the witnesses who introduced the calls actually were not on the calls.

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And so as a consequence, if they knew who the person was, fine.

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As I said, in several cases, we stipulated.

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I guess I was wondering, to the extent that you did have the names, I was puzzled that you didn't try to make anything of those names.

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Not that someone seemingly totally uninvolved might not actually be involved in the conspiracy, but at least

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just reasons why a particular pair of the comb would be unlikely to be participating in the experiment.

[00:04:13] Speaker 01:
Well, certainly all the calls played in trial were calls that were deemed pertinent.

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And in many cases, when Cano Flores was talking to Metro Trace, who was arguably superior, we stipulated that's who those people were.

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But a lot of the other phone calls that just weren't pertinent,

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But the question is, the question in my mind is, is there anything besides being concluded to be not privilege and lasting two minutes or more that makes your case, helps your case of inadequate minimization, could it not have been

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problem here because people use codes and lots of people involved and I know from my

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to do things that for good reasons the older people involved don't do.

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It's, you know, something about these people that would tell us, you really can't cross them off of this,

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it's useful to look a little bit at the actual Supreme Court case of Scott.

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Because in that case, we've said, we believe it only went to a burden of production.

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In that case, the government did.

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Now mind you, that had been a ruling in favor of the defendant below.

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In that case, the government actually did file something called a call analysis, in which they told the court, including this court and the district court,

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why they didn't minimize those calls.

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In other words, they, now, it was done after the fact and the defendant didn't like that.

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If you were manned in this case, that will certainly happen again.

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It will be after the fact.

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But they did come up with a reason.

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Can I ask you that about our decision in Carter?

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So in our Carter decision, we said a defendant must identify particular conversations so that the government can explain their non-minimization.

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so that seems to put the burden on the defendant to identify particular conversations and that decision also stands for the proposition as you know that

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wrote statistical evidence is not going to suffice, that it has to be something more than that.

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So one way to read that decision is that the burden is on the defendant to identify the content of particular conversations.

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Well, and that's where, you know, it didn't say that.

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It said we had to identify the calls.

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And in our view, that's what we did.

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We identified the calls.

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You know, it's important in Scott, I think.

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Only by reference, two factors.

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That's how we came up with the list of the calls we identified.

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Yes.

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That's what we looked at.

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All right.

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And how is that different from what happened in Carter itself?

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Because in Carter itself, the point was made that a certain percentage of non-pertinent calls were minimized.

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The way I would say is that, first of all, Carter just made a general claim.

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He said, well, you know, you didn't minimize a certain percentage.

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You know, what we've tried to say- Non-pernit calls.

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Huh?

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Non-pernit calls.

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Obviously, they don't have to minimize a pertinent call.

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And realistically, they don't have to minimize a call.

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you know, that might be pertinent.

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They get to keep listening to it.

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But why they keep listening to it is going to be a function of what's in the agent's mind.

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One of the points that they made in Scott was that, look, of... What more did you do, just so we understand?

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So in Carter, the defendant says, look, there's an anemic percentage of non-pertinent calls that were minimized.

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And then in Carter, this court said, well, that's not enough.

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The defendant has to do more than that.

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The defendant has to identify particular conversations.

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And I take your point that you don't think that means content, but that's at least one interpretation of it.

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But what more did you do materially than identify a percentage of non-pertinent calls that were not minimized?

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Well, I mean, we identified the calls.

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I mean, we have a list of the calls.

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We didn't just say, here's a percentage.

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You know, we said, these are the calls.

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But what does that do?

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The fact that you're listing a number of calls, I guess I'm not following exactly what that does, other than give you a tool with which to make a percentage.

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Because if all you're doing is identifying calls, suppose, in other words, the defendant identifies 17 calls, doesn't tell you anything about the calls, just identifies 17 calls by call number.

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then I take it that the immediate response is going to be, okay, well that's the numerator, what's the denominator, and then you get a percentage.

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And at that point, it doesn't seem like anything more has happened than what already happened in Carter.

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So what does it do for

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What does it do to advance your cause that particular calls were identified, other than to give some tool with which to make a statistical assessment, which Carter said was insufficient?

[00:09:44] Speaker 01:
No, I think what it does is it shifts the burden.

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The issue is not over simply because of a given percentage.

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You know, in some of these lines, they didn't minimize any of them.

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It's not over then, but the question is who

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who explains why they kept listening.

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And in Scott, one of the issues was the agents said, we didn't bother.

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And the Supreme Court said, look, their motive isn't important.

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What is important is what they, the facts that were known to them at the time.

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And that seems to me to be agreeing with the concept, because the government did provide that information in Scott.

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That seems to me to support the concept that, look, when it comes to what's in the agent's mind, why do I need to keep going?

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It might be code words, your honor.

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It may be, hey, this is a suspicious number.

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We need to find out what's going on here.

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I do understand there will be calls like that.

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And it may even be that there's a majority.

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But I think to try to have the defendant say,

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without access to the confidential investigation documents, to have the defendant say, oh, well, this couldn't possibly be pertinent.

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I mean, sure, Judge Rosting talked about if we had a romantic phone calls, that would be one thing, I suppose.

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Put it aside the cases where you say the data turned over you and you did not include

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the name of the other party.

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Why can't the defendant at least come forward with something about these people, which would persuade a listener that they're not going to get anything?

[00:11:32] Speaker 01:
Well, let's stop a minute, though.

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What is it that we would provide?

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Because remember, it's not what the actual truth is.

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It is what is in the agent's mind when he or she is listening to the call.

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The fact that we might be able to prove after the fact that Senor Lopez was, in fact, somebody who provided animal food,

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The fact that we prove that after the fact doesn't help us if the agents had a reasonable belief at the time that Senor Lopez may have been involved in the conspiracy.

[00:12:09] Speaker 03:
Well, at least he's a provider of animal food.

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That might shift the burden as to that call, right?

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depending upon the conversation, a discussion of the delivery of animal food, if you're really, once you're competent, it's animal food, would seem something non-pertinent.

[00:12:34] Speaker 01:
I certainly see

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I certainly see what you're saying.

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I guess I just respectfully disagree that the burden should be on the defendant to try to show what was in the agent's mind as to why we kept listening to a call that we couldn't find patently pertinent.

[00:12:54] Speaker 05:
I think these questions are just going to what more can the defendant provide.

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that may have some relevance as distinct from what was in the agent's mind.

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That's all.

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You're saying you listed the calls and Judge Williams was asking you about only those calls where you knew the party's identification.

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And your position, I gather, from your

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responses here this morning is once you identify the call and the length of the call, that's all a defendant can do.

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That would be relevant to this question about why the agents keep listening.

[00:13:35] Speaker 01:
Yes, Judge.

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That's what our argument is.

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Because to use the example, we don't know what the agents think the code words might be.

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I used an example in my reply brief.

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They may think cattle means drugs.

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And if we could prove that cattle actually met livestock in every call, so what?

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And we still don't prevail because it's from the point of view of the agent.

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And by asking the defendant, it's true that there probably would be some individual calls, and we could sit there and say that too.

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But in our view, it seems appropriate when you identify the calls, if the criteria is going to be the context of the call or the content of the call, and that's going to affect the agent's decision to keep listening, then it seems to us that the burden would then be on the government to come forward.

[00:14:25] Speaker 01:
Because they're in the best position to answer that.

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Not surprisingly, that took most of my time.

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It is a very important issue.

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I guess the only other issue in my very few seconds is I did want to briefly address the question of the forfeiture in the context of the Eighth Amendment.

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This is, as best I can tell, a completely novel issue.

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Whether or not the general rule of conspiracy that allows for joint and several liability essentially is read into the Eighth Amendment, or I can't trump the Eighth Amendment, of course.

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But it is our view that the Eighth Amendment is an individual right, and so that determining whether a forfeiture is excessive, as we suggest $15 billion is, on a man represented by a court-appointed lawyer, and who was just a plaza boss for a little town of 5,000 people.

[00:15:25] Speaker 03:
If the principles of conspiracy are enough to bring in sales in which the defendant was not self-involved for time in prison wise, $50 billion is a big number obviously.

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Beyond life, there's no higher, or can't go higher than the years in prison issue.

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to distinguish between the two?

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I'm sorry, I'm not sure I follow that question.

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You're asking the court in effect to draw a distinction between the use of conspiracy principles for purposes of duration in prison as opposed to fine, forfeiture.

[00:16:13] Speaker 03:
And I'm just wondering why, what's the principle distinguishing between those two?

[00:16:19] Speaker 01:
Well, this circuit has actually been pretty good about recognizing that for sentencing purposes merely the fact that a defendant has been found part of a conspiracy doesn't make the defendant liable for everything that the conspiracy occurred.

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You have the test of reasonably foreseeable.

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And so it isn't the case that simply being convicted of a conspiracy, which is the government's charging decision.

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That's what's driving it.

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findings, jury findings for the conviction.

[00:17:08] Speaker 01:
But that's what goes to, that's what in many cases goes to determining the length of a prison sentence.

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And so you're asking me to distinguish that.

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I'm sorry, you're... You are asking me, as I understood the question, Your Honor, you are asking me why am I drawing a different distinction between a conspiratorial liability as opposed to sentencing in terms of incarceration versus a forfeiture.

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And what I'm saying is, look, this court has said simply finding somebody guilty of a very large conspiracy doesn't mean for sentencing purposes, going to the sentencing guidelines, relevant conduct.

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That's the time in prison.

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It doesn't mean that the defendant is held responsible for everything the conspiracy did, because it is a charging decision by the government whether to bring someone into a conspiracy, to charge them of the smaller conspiracy.

[00:18:02] Speaker 01:
You have to look at what the evidence shows that a defendant actually did.

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And in this case, he was not one of the leaders of the conspiracy.

[00:18:10] Speaker 07:
Can I ask you a follow-up question?

[00:18:12] Speaker 07:
Sure.

[00:18:15] Speaker 07:
How do you draw the line?

[00:18:16] Speaker 07:
I mean, you've got a big number.

[00:18:20] Speaker 07:
$15 billion is a big number.

[00:18:21] Speaker 07:
I think everybody can stipulate to that.

[00:18:23] Speaker 07:
But is your argument that

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It wasn't, as a matter of fact in this case, it was not reasonably foreseeable to your client that the conspiracy writ large was bringing in those sorts of sums.

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which would operate within the framework of conspiracy laws we know it now because it would apply the test of reasonable foreseeability that you rightly allude to.

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Or is your point that it's something else?

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And I'm thinking suppose you have an example where it's undisputed that everybody in a large conspiracy knew that this was a big deal and we're bringing in all boatloads of proceeds, billions upon billions.

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So everybody understood that.

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But there's still some other extant Eighth Amendment principle that kicks in and says even if you knew

[00:19:04] Speaker 07:
even if it was reasonably foreseeable to you that the conspiracy was bringing in billions upon billions of dollars, you simply can't be imposed, you simply can't be assessed a fine of that degree on a joint and several basis with other people.

[00:19:19] Speaker 01:
Yes, that would be my argument.

[00:19:21] Speaker 01:
The latter?

[00:19:21] Speaker 01:
Yeah, and the reason I go back to that is because defining what the conspiracy is is a function of the charging decision by the government.

[00:19:31] Speaker 03:
But it has to, I mean, if the evidence doesn't support it, then the conspiracy, either no conspiracy or a narrower conspiracy is found.

[00:19:45] Speaker 01:
Well, but let's look at the two examples in this case.

[00:19:48] Speaker 01:
Hinoza and Manolo, both of whom are clearly participants in the overall conspiracy, and yet both of them were allowed to plead guilty to much more finite conspiracies.

[00:20:00] Speaker 02:
That's a separate issue, right?

[00:20:03] Speaker 01:
That's the issue of equality among... Well, certainly, that certainly is a key to my sentencing argument.

[00:20:11] Speaker 01:
But it also, I think, demonstrates what I mean is, look, the amount that they were required to forfeit

[00:20:16] Speaker 01:
because their conspiracy was viewed as smaller, simply by a decision by the prosecutor, how they wanted to bring that, means all of a sudden they have less than my client, who you want to say, well, you know, we tagged him as being part of a 25,000-person conspiracy, and so therefore he's got to be responsible for every bit of it.

[00:20:40] Speaker 07:
I will say, I think that... So what's the principle then?

[00:20:42] Speaker 07:
Because I mean, you're alluding to something that applies across cases, and you're saying the government has the flexibility to charge a large conspiracy in some cases, a small conspiracy in other cases.

[00:20:51] Speaker 07:
But what's the principle then that tells us that under the Eighth Amendment, the amount of a forfeiture in any particular case is unconstitutional?

[00:21:01] Speaker 01:
Well, obviously, it's fact-driven.

[00:21:05] Speaker 01:
I think we get that from the bajikian, if I'm pronouncing that correctly.

[00:21:09] Speaker 01:
You know, there's a number of factors when you even trigger an 8th Amendment analysis.

[00:21:14] Speaker 07:
But I don't think any of those factors looks to other cases to figure out whether the government charged a large conspiracy or a small conspiracy.

[00:21:20] Speaker 01:
Oh, I don't think, no, those didn't.

[00:21:23] Speaker 01:
But then, frankly, the forfeiture

[00:21:26] Speaker 01:
And nobody that I'm aware of has raised an 8th Amendment argument saying applying the

[00:21:35] Speaker 01:
joined in several liability from conspiracy theory is a violation of an individual's Eighth Amendment right against an excessive fine.

[00:21:43] Speaker 01:
So it's a novel issue.

[00:21:45] Speaker 01:
The Supreme Court certainly struggled with it.

[00:21:48] Speaker 01:
And is it paralleling?

[00:21:50] Speaker 01:
Now, that's a restitution case.

[00:21:51] Speaker 01:
I understand that.

[00:21:52] Speaker 01:
But they made some references to what was troubling about that, that no opportunity to get contribution.

[00:22:01] Speaker 05:
I was going to ask you, though, whether or not any, and I haven't done the research yet, but in the Eighth Amendment context, whether there's that history.

[00:22:11] Speaker 05:
In other words, no opportunity in fact or practically to get contribution, even if the fine were otherwise okay, no possibility this defendant could ever pay it.

[00:22:32] Speaker 05:
even if he mortgaged everything he had in the world and his grandchildren's future as well.

[00:22:43] Speaker 05:
So beyond your point about equality of defendants, you have this other argument that you put under the third or fourth factor, extent of culpability.

[00:22:58] Speaker 01:
Well, I think that's extremely important.

[00:23:01] Speaker 01:
I obviously tried to emphasize that in the sentencing portion, but I think it tails over into the forfeiture point.

[00:23:09] Speaker 01:
It's just that most of the times when you see these joint inseverable, the conspiracy is a relatively finite conspiracy.

[00:23:16] Speaker 01:
Not everybody knows everybody else about it.

[00:23:18] Speaker 01:
But, you know, they're taking place in at least in one city usually, maybe with a supplier from another city.

[00:23:25] Speaker 01:
It's just more finite than charging a 25,000-person conspiracy in an entire country.

[00:23:30] Speaker 07:
So your argument is not that joint and several liability for co-conspirators vis-a-vis forfeiture necessarily violates the Eighth Amendment?

[00:23:38] Speaker 07:
Correct.

[00:23:39] Speaker 07:
I'm not making that blanket assertion.

[00:23:41] Speaker 07:
So when you say there's something novel about this case,

[00:23:44] Speaker 07:
It's not novel in the sense that applying joint and sub-reliability principles for purposes of a forfeiture award to a conspiracy is not novel.

[00:23:52] Speaker 07:
That, as a basic proposition, you're not making the... Right.

[00:23:55] Speaker 01:
Right.

[00:23:56] Speaker 07:
So what's novel here is it's a really, really big award.

[00:23:59] Speaker 01:
And in our view, then, it's so excessive it implicates the Eighth Amendment.

[00:24:04] Speaker 07:
But it's a really, really big conspiracy.

[00:24:07] Speaker 07:
It does seem to be a gargantuan award, but it also seems to be a gargantuan conspiracy.

[00:24:14] Speaker 07:
what that what's novel about the size of the war seems predicated on the novelty of the size of the conspiracy and unless you have some principle for telling us

[00:24:24] Speaker 07:
what in the Eighth Amendment just doesn't allow the forfeiture to grow commensurately with the scope of the conspiracy.

[00:24:30] Speaker 07:
I'm not exactly sure what the principle is by which one a court should determine.

[00:24:33] Speaker 01:
Well, I think it has to, but I think it has to be kept in the, because I believe the Eighth Amendment is an individual right, all right?

[00:24:41] Speaker 01:
And if that's the case, then I think you have to look at the conduct of the defendant.

[00:24:49] Speaker 01:
And to hold him accountable for the Zetas, I just think is unfair.

[00:24:58] Speaker 01:
And where the lines get drawn, I don't know.

[00:25:01] Speaker 01:
You saw how the Supreme Court in parallel with all those different decisions.

[00:25:05] Speaker 01:
I don't think anybody agrees it would be an easy decision.

[00:25:10] Speaker 01:
you know, if we change places, I'm sure I'd have our time, you know, articulating something in writing as well.

[00:25:16] Speaker 01:
And I don't mean to say this is a simple issue, but it's just, you know, when you have one, you know, okay, you know, we all sort of knew what was going on, you know, so I knew he was doing this then and so forth, versus,

[00:25:29] Speaker 01:
Yeah, I guess they were doing something in Jalisco.

[00:25:32] Speaker 01:
I don't know anything about it.

[00:25:33] Speaker 01:
I didn't know anybody there.

[00:25:34] Speaker 01:
But yeah, I guess probably, you know, something was going on in Jalisco.

[00:25:39] Speaker 01:
Something was going on in Oaxaca.

[00:25:41] Speaker 01:
But that's what we're sort of talking about.

[00:25:43] Speaker 01:
If it was sort of like, hey, look, you were in, you know, Miguel Alamein.

[00:25:47] Speaker 01:
You know, how much did you know about what was going on there?

[00:25:50] Speaker 01:
Because you are like, your plaza was part of the larger plaza of Miguel Alame.

[00:25:54] Speaker 01:
You know, that might be a reasonable analysis.

[00:25:58] Speaker 01:
But I think it's got to be, I think it has to be viewed at from the point of view and the culpability of the individual.

[00:26:04] Speaker 01:
And I think that requires a much more specific findings about what was reasonably foreseeable to him.

[00:26:22] Speaker 04:
Good morning, Your Honors.

[00:26:23] Speaker 04:
May it please the Court, Nina Goodman for the United States.

[00:26:27] Speaker 04:
I'd like to begin by addressing the wiretap issues, and I'm obviously happy to answer any questions the Court has.

[00:26:36] Speaker 04:
With respect to the minimization, this Court has already stated where the burden lies in the Carter case.

[00:26:44] Speaker 04:
And the Court has stated that until the defendant

[00:26:49] Speaker 04:
identifies conversations that should not have been intercepted, but which were in fact intercepted, then the issue of minimization is not in play.

[00:27:02] Speaker 04:
And defendant's argument is, well, I identified specific calls, and as the court discussed with him, that were ultimately determined to be non-pertinent and which were also longer than two minutes.

[00:27:17] Speaker 04:
And there are two reasons why that doesn't meet the defendant's burden here.

[00:27:22] Speaker 04:
The first reason is that what the court said in Carter is that the defendant has to identify calls that should not have been intercepted and a call that is ultimately determined to be non-pertinent but which was not minimized.

[00:27:38] Speaker 04:
is not the same thing as a call that should not have been intercepted.

[00:27:42] Speaker 04:
And the Supreme Court and this court have made that clear.

[00:27:46] Speaker 04:
But the other problem with the defendant showing is that he says nothing about the content of the calls.

[00:27:52] Speaker 04:
And he had tapes of all these calls.

[00:27:55] Speaker 04:
He had lists of the calls with who was involved.

[00:27:59] Speaker 02:
I'm sorry.

[00:28:00] Speaker 02:
He has the content.

[00:28:01] Speaker 04:
He has the content.

[00:28:03] Speaker 04:
In the government's discovery to the witness, he was provided with a tape of all the calls that were intercepted from the pertinent target devices, the pertinent cell phones.

[00:28:18] Speaker 04:
So he has access to all of this and... Is that just a general practice?

[00:28:23] Speaker 07:
Does the government always disclose the contents of calls that were intercepted in connection with the case?

[00:28:30] Speaker 04:
I'm not sure, Your Honor, but in this case that was the government did that as part of its obligation under Rule 16.

[00:28:38] Speaker 04:
And so the defendant has to say, I mean, this court in the Ernest Glover case said what's relevant is the content of the calls.

[00:28:48] Speaker 04:
And he hasn't said anything about the content of these calls whatsoever.

[00:28:54] Speaker 04:
If you look at one of the lists, for example, for target device 32, he says, well, there's three calls that were non-pertinent, that were over two minutes.

[00:29:03] Speaker 04:
And this, of course, ignores the more than 100 pertinent calls that were intercepted during the time period.

[00:29:10] Speaker 04:
But setting that aside, they're all, Mr. Canoflores talking to an unidentified person.

[00:29:17] Speaker 04:
And so one of the,

[00:29:21] Speaker 04:
The principal purpose of the wiretaps, as stated in the wiretap affidavits, was to identify other members of unknown members of the conspiracy, of this vast conspiracy, and to figure out the command structure of the conspiracy.

[00:29:38] Speaker 04:
And so as the district court found, in addition to finding that he hadn't met his burden,

[00:29:43] Speaker 04:
There are all kinds of factors about this conspiracy that make it clear why the government would continue to listen to non-pertinent calls, and particularly those involving unidentified persons.

[00:29:55] Speaker 04:
I mean, and everything has already been stated here, the vast scope of the conspiracy, the use of code words, the ambiguous language, the ever-changing test of characters.

[00:30:07] Speaker 03:
Could failure to minimize ever be shown in a conspiracy case like this?

[00:30:13] Speaker 04:
Well, Your Honor, it could be shown if the defendant said, oh, but look, there's a pattern of calls with my girlfriend.

[00:30:24] Speaker 04:
and the government didn't bother to minimize those or there's you know but but there has to be something known to participate in a conspiracy.

[00:30:35] Speaker 04:
Right and so as a practical matter this is the height of a case if there's ever a case where you're saying

[00:30:45] Speaker 04:
The government has the greatest latitude to continue to listen to calls that might have ultimately been determined to be non-pertinent.

[00:30:56] Speaker 04:
I would suggest that this is that case.

[00:30:59] Speaker 05:
So this case is argued as if there is a geographically large area being covered and the government has an interest in illegal activity

[00:31:15] Speaker 05:
in this large area that is affecting the United States, the government has free reign.

[00:31:27] Speaker 05:
I mean, there's so many times I see that in the brief.

[00:31:31] Speaker 05:
And so we wrote an opinion that says this is a unique golf cartel case, and it only applies here.

[00:31:43] Speaker 05:
I mean, we're just trying to come up with some standards, or Judge Srinivasan said, principles to apply here.

[00:31:50] Speaker 05:
And largeness can't be the answer to everything.

[00:31:54] Speaker 04:
No, Your Honor, that's correct.

[00:31:56] Speaker 04:
But we don't think the court needs to break any new ground to say that the minimization was appropriate here.

[00:32:02] Speaker 05:
No, but what I'm getting at is Judge Williams' question about, is it impossible for a defendant

[00:32:09] Speaker 05:
given the purpose of the wiretap.

[00:32:12] Speaker 05:
Once the judge authorizes a wiretap to determine who's involved in the conspiracy and what the command structure is, what protection is there, if any, left for a defendant to seek to enforce?

[00:32:29] Speaker 04:
Well, but the defendant could, for example, as in some cases say, but the wiretap continued and it became clear that I spoke to certain people that were patterns of conversations that were not pertinent, that were not, that should have been minimized.

[00:32:47] Speaker 04:
An example, if the court wants an example, you can look at the recent case from the Fifth Circuit, the North case, where the defendant identified a conversation that was with a girlfriend, where it continued for an hour just talking about non-pertinent things, and then it got to the

[00:33:10] Speaker 04:
there is some criminal matter and the court in the fifth circuit held, well that should have been minimized.

[00:33:17] Speaker 07:
What's the remedy for if you have a case like that and there is a failure of minimization?

[00:33:23] Speaker 04:
The remedy is suppression of that particular call and if I could respond to that.

[00:33:28] Speaker 07:
So we're talking about non pertinent calls.

[00:33:30] Speaker 04:
Well that's an example of a case where the call should have been minimized ultimately the court found, the fifth circuit found, the call should have been minimized but ultimately

[00:33:41] Speaker 04:
information came out at the end of the call, and that actually was useful, but what the court said was, given that it was a non-criminal discussion for an hour with a girlfriend, the government should have minimized before that.

[00:33:57] Speaker 04:
But the point is, well there are two points, one is that the defendant there identified a call.

[00:34:03] Speaker 04:
And said, look, here's this call.

[00:34:05] Speaker 04:
It should have been minimized.

[00:34:06] Speaker 04:
At that point, under this court's law, that would give the government an obligation to, at least it would put the minimization issue in play.

[00:34:15] Speaker 05:
So the Fifth Circuit was focusing on the hour.

[00:34:19] Speaker 04:
The Fifth Circuit was focusing on the hour, but what it was focusing on more, Your Honor, was the content of the discussion.

[00:34:27] Speaker 04:
And what this court said in the Ernest Glover case is that it's really the content that's important, so that reasonableness of minimization turns on the content.

[00:34:41] Speaker 04:
And if I could just return in here, there's nothing identified about the content.

[00:34:47] Speaker 04:
But if I could just return to Judge Srinivasan's question, it's clear when the statute provides for that the defendant can move for exclusion of any communication that's intercepted in violation of the order.

[00:35:03] Speaker 04:
The order requires minimization.

[00:35:06] Speaker 04:
That's referring communication by communication.

[00:35:09] Speaker 04:
Your honors, I'd like to, if I could, address the jurisdiction.

[00:35:12] Speaker 04:
Have we held that, just so I'm clear?

[00:35:15] Speaker 04:
This court has not held that.

[00:35:16] Speaker 04:
The court has noted it in dicta in the Scott case.

[00:35:25] Speaker 04:
Your honors, I'd like, if I could, to just briefly address the jurisdictional issue on the wiretap.

[00:35:31] Speaker 04:
The government's argument there is that under the plain language of Title III, which authorizes a

[00:35:39] Speaker 04:
a court to approve the interception of communications within its own jurisdictional bailiwick.

[00:35:50] Speaker 04:
And then the statute then goes on to define interception as oral acquisition of communications, contents of communications.

[00:36:03] Speaker 04:
that that authorized the district court in this case, the courts in the Southern District of Texas, where the investigation took place, where the crime took place, at least within the United States,

[00:36:16] Speaker 04:
And where the government first orally acquired, that is, heard the contents of the calls, that that authorized the district judges in Texas then had jurisdiction to authorize that interception.

[00:36:33] Speaker 04:
That's what every five of the courts of appeals, every court of appeals that has considered this issue has ruled.

[00:36:41] Speaker 04:
And we believe that that's what this court should hold here.

[00:36:46] Speaker 04:
The defendant says, well, but the calls themselves took place in Mexico.

[00:36:54] Speaker 04:
And that's correct.

[00:36:56] Speaker 04:
But the statute makes clear that, and the district court found, that it's not the location of the calls.

[00:37:05] Speaker 04:
It's where the calls are intercepted.

[00:37:08] Speaker 04:
And here, that was in the Southern District.

[00:37:11] Speaker 04:
of Texas, which is exactly the jurisdiction that authorized the wiretap.

[00:37:16] Speaker 07:
And when you say where it was intercepted, this is the listening post rationale.

[00:37:20] Speaker 07:
And is a listening post, just as a matter of technology, is a listening post a contemporaneous listening?

[00:37:28] Speaker 07:
Is that typically what happens?

[00:37:29] Speaker 07:
There's a conversation going on and there's a technology set up to enable, so you can't, in other words, couldn't have a situation in which the government tapes a call and then sends the cassette tape over to, before ever listening to it, sends the tape over somewhere to some other district and then plays it for the first time in that other district and says, oh, that's the first time anybody ever listened to it.

[00:37:53] Speaker 04:
Well, I've never heard of that happening.

[00:37:55] Speaker 04:
That's certainly not what happened here, Your Honor.

[00:37:57] Speaker 04:
I mean, there was a provision consistent with the statute that if no Spanish-speaking DEA contractor was available, that they could record the call, then listen to it when the contractor came in.

[00:38:10] Speaker 04:
For translation purposes, that makes sense.

[00:38:12] Speaker 04:
For translation purposes only.

[00:38:14] Speaker 04:
That's correct.

[00:38:15] Speaker 04:
But here, it was contemporaneous that as a call came in, the monitors

[00:38:20] Speaker 04:
would listen to the call at that time.

[00:38:24] Speaker 04:
That was the first time.

[00:38:25] Speaker 07:
And then can I just get your understanding so that we have this case Glover that deals with the

[00:38:34] Speaker 07:
mobile intercept device.

[00:38:36] Speaker 07:
And can I just get your understanding of the rest of the text of the provision that you already referred to, which is in the parenthetical dealing with mobile intercept device that was at issue in Glover.

[00:38:49] Speaker 07:
And the particular question is, why does that parenthetical refer to interceptions outside the jurisdiction but within the United States if it's the case that the listening post is good enough already?

[00:39:02] Speaker 07:
Because if the listening post is good enough already, the fact that the mobile intercept device goes somewhere else, at least in today's technology, wouldn't seem to matter because you'd always be able to listen to the listening post no matter how far and wide the mobile intercept is.

[00:39:15] Speaker 07:
Does it have to do with the change of technology over time?

[00:39:20] Speaker 04:
Well, Your Honor, the government obviously very respectfully disagrees with the court's analysis in the Lanell Glover case.

[00:39:27] Speaker 04:
And so the government in that case did rely on the listening post.

[00:39:32] Speaker 04:
But what this court said is that no, this is different because here you have a mobile interception device, something that is installed, physically installed on private property.

[00:39:46] Speaker 04:
And obviously nothing of the kind occurred in this case.

[00:39:50] Speaker 04:
There was no physical installation of any kind.

[00:39:53] Speaker 04:
But the other thing the court and the court's ultimate holding in the Lanell Glover case was that

[00:39:59] Speaker 04:
The particular order in that case was invalid on its face, because it said, I'm a court in the District of Columbia.

[00:40:09] Speaker 04:
You may go and install something that

[00:40:12] Speaker 04:
it shows here is on a vehicle that it shows here is in Maryland.

[00:40:17] Speaker 04:
And so with the mobile interception device, as the court interpreted it, it was that physical installation where the problem arose.

[00:40:27] Speaker 04:
That's not present here.

[00:40:29] Speaker 07:
So what I don't understand is even if the physical installation occurs somewhere else, if the listening occurs within the jurisdiction of the court that issued the wiretap authorization, then under the listening post rationale, that should be enough.

[00:40:40] Speaker 04:
That was the government's argument.

[00:40:42] Speaker 07:
Right.

[00:40:42] Speaker 07:
And that argument didn't succeed.

[00:40:44] Speaker 04:
That argument didn't succeed.

[00:40:45] Speaker 07:
In the face of that non-success, I guess what I'm asking is then how did we go forward in this case?

[00:40:51] Speaker 07:
Because that case had a listening post argument advanced by the government that this court did not accept.

[00:40:59] Speaker 04:
That case, the court made clear in Glover, and it specifically distinguished the cases the government is relying on here.

[00:41:07] Speaker 04:
And the reason it distinguished them

[00:41:09] Speaker 04:
It said, those addressed an issue that is not presented here, the issue of a telephone wiretap.

[00:41:17] Speaker 04:
And what the court focused on in Glover was the physical installation.

[00:41:22] Speaker 04:
That's what it found was the violation that made the order in that case

[00:41:29] Speaker 04:
invalid on its face.

[00:41:31] Speaker 04:
Here there's nothing of that kind.

[00:41:33] Speaker 04:
And as you say, the court was focusing on the meaning, the specific meaning of the mobile interception device clause that also isn't presented here.

[00:41:42] Speaker 04:
But it's important to realize that, yes, the government relied on the listening post theory in Glover and the court did not

[00:41:49] Speaker 04:
accept or reject it, but it found that the thing about Glover was you had to go an additional step.

[00:41:57] Speaker 04:
You had to say, based on the Supreme Court's decision in the Dahlia case,

[00:42:03] Speaker 04:
that somehow this physical interception in another district was therefore authorized because everything was fine with the interception.

[00:42:15] Speaker 04:
And that's where the court seems to have rejected the government's argument.

[00:42:21] Speaker 04:
And the court did that by looking both at the statute and at

[00:42:26] Speaker 04:
the federal rule 41 and saying, well, that physical trespass on property in another district, that's what made this order invalid on its face.

[00:42:44] Speaker 04:
And so our position with respect to Glover is that it's simply, as the court said,

[00:42:49] Speaker 04:
does not address the issue presented here, where you have no physical intrusion, no trespass of any kind.

[00:42:57] Speaker 04:
You just have the interception at the listening post, which every other circuit has said is a valid reading of the statute.

[00:43:10] Speaker 04:
It's consistent with the plain language, and we think this court should adopt it.

[00:43:18] Speaker 04:
I'd like to turn

[00:43:20] Speaker 04:
if the court very briefly to the forfeiture issue.

[00:43:24] Speaker 04:
And I think the forfeiture was large.

[00:43:28] Speaker 04:
And if you're looking at the factors, they really in this case do weigh very heavily

[00:43:35] Speaker 04:
against the finding that the forfeiture was grossly disproportionate.

[00:43:39] Speaker 07:
Has it ever been a bigger one?

[00:43:41] Speaker 04:
Not that I'm aware of.

[00:43:43] Speaker 07:
This may be the biggest forfeiture award ever.

[00:43:45] Speaker 04:
It may be.

[00:43:46] Speaker 04:
I have not researched it to see, but this seems like the largest I'm aware of.

[00:43:54] Speaker 04:
But at the same time, the extraordinary nature of this case is

[00:43:59] Speaker 04:
what means that the forfeiture is not itself grossly disproportionate.

[00:44:05] Speaker 04:
And first of all, it's important to note that the district court found that this amount, the $15 billion, which was a very conservative estimate of the proceeds of this 10-year cartel activity, this 10-year conspiracy,

[00:44:22] Speaker 04:
was all reasonably foreseeable to Mr. Cano Flores.

[00:44:27] Speaker 07:
Can I ask you a question before we get to that, which is under the statute, 853A is the forfeiture provision, and it authorizes forfeiture or mandates forfeiture of any property constituting or derived from any proceeds the person obtained directly or indirectly.

[00:44:45] Speaker 07:
And how do you get from a statute that refers to what the person obtained

[00:44:50] Speaker 07:
to assigning to the person $15 billion based on what the entire cartel obtained?

[00:45:01] Speaker 04:
Well, courts have held, and as the defendant concedes here, that a defendant is jointly and severally liable, severally, in a drug conspiracy case specifically, a defendant is jointly and severally liable for the reasonably foreseeable

[00:45:19] Speaker 04:
proceeds of the conspiracy and so and that's consistent with general conspiracy law subject of course to an eighth amendment constraint I mean the that that's the the statutory provision but the eighth amendment issue

[00:45:34] Speaker 04:
is separate and is a separate constraint for an award that would be found under the relevant factors.

[00:45:41] Speaker 07:
Right, so I'm just asking under the statute itself, before we just go to the Eighth Amendment, and I know you want to get to the Eighth Amendment when we want to hear you, but under the statute itself, does conspiracy law kick in and tell us that when the statute refers to the person it's really talking about,

[00:45:57] Speaker 07:
what the entire conspiracy obtained?

[00:45:59] Speaker 07:
Or how does conspiracy law intersect with the text of this provision in a way that allows us to say that one person, although they didn't receive either indirectly or directly $15 billion, that degree of forfeiture can still be imposed against them?

[00:46:14] Speaker 04:
It kicks in in this way, Your Honor.

[00:46:16] Speaker 04:
In general, under conspiracy law, a defendant is responsible for what's reasonably foreseeable to him in terms of punishment.

[00:46:25] Speaker 04:
And so

[00:46:26] Speaker 04:
If there were aspects of the conspiracy that were not, for example, if someone was a very small career, that might not apply.

[00:46:37] Speaker 04:
But for the joint and several liability applies based on the reasonable foreseeability to that person.

[00:46:47] Speaker 04:
Because if you join a conspiracy,

[00:46:49] Speaker 04:
That's what you're responsible for.

[00:46:51] Speaker 07:
I'm not understanding why the courier wouldn't fall within the fold of your argument.

[00:46:56] Speaker 07:
If the courier knows that the courier is becoming part of a vast conspiracy that's taking in billions and billions of dollars, wouldn't the courier fall within the statute, too?

[00:47:03] Speaker 04:
Well, it would depend on the facts, Your Honor.

[00:47:05] Speaker 04:
It would depend on what the court found was reasonably foreseeable to that particular person.

[00:47:11] Speaker 04:
And here, the district judge did find that this was reasonably foreseeable to Mr. Canoflores.

[00:47:19] Speaker 07:
And the this that has to be reasonably foreseeable is what?

[00:47:22] Speaker 07:
The amount that the conspiracy takes in over the duration of the charge conspiracy?

[00:47:27] Speaker 04:
Whatever part of the amount.

[00:47:29] Speaker 04:
I mean, the proceeds of the conspiracy.

[00:47:32] Speaker 04:
To say this was based on the evidence at trial and the testimony at the sentencing.

[00:47:37] Speaker 04:
I mean, the proceeds of the entire cartel over 11 years

[00:47:44] Speaker 04:
was vastly more, I mean, this is.

[00:47:47] Speaker 05:
It was only $3 billion more, according to your conservative estimate.

[00:47:51] Speaker 04:
Well, conservative estimate, but that was based on the, not to get too much in the weeds, that was based on what the Zeta, Mr. Manito, who worked closely, by the way, with Mr. Cano Flores, that was based on what he had personal knowledge of.

[00:48:09] Speaker 05:
I know, but that's the only evidence that's before the district court.

[00:48:11] Speaker 05:
Right.

[00:48:11] Speaker 05:
That's right, Your Honor.

[00:48:12] Speaker 03:
That's right.

[00:48:13] Speaker 03:
The government has no hope of getting the $15 billion or even a modest fraction of $15 billion from the defendant here.

[00:48:21] Speaker 03:
Is the government asking for $15 billion just to establish the principle?

[00:48:28] Speaker 03:
establish the principle in the face of extraordinary numbers so that there might someday come defendants who might have 15 billion on hand to be elected by the government.

[00:48:40] Speaker 04:
Well, Your Honor, I think that all I can say based on the record is that the government was applying the law here and asking the district court to apply the law.

[00:48:49] Speaker 04:
And in general, forfeiture, I mean, forfeiture is mandatory, and it doesn't depend on whether the defendant ultimately might have the ability to pay.

[00:48:59] Speaker 04:
If the court has no further questions, we'd ask.

[00:49:05] Speaker 05:
How about the Eighth Amendment?

[00:49:06] Speaker 04:
The Eighth Amendment issue here, when you look at the factors, I think it's, as Judge Srinivasan might have remarked earlier, it's an extraordinary amount, but it's not grossly disproportionate, given the extraordinary nature of the crime.

[00:49:23] Speaker 05:
Not grossly disproportionate to this man's conduct.

[00:49:32] Speaker 04:
Well, Your Honor, if you look at the factors, one of them is, I think it takes into consideration the test that has been stated by this Court and others.

[00:49:42] Speaker 04:
It takes into consideration both the crime that he joined and the harms resulting from the defendant's conduct.

[00:49:51] Speaker 04:
And in this case, Mr. Pena-Flores

[00:49:57] Speaker 04:
seeks to minimize what his conduct was.

[00:50:01] Speaker 04:
But the record in the district court shows that he participated in exactly, centrally, what was causing the harm, wreaking what the district court saw as the tragedy of the corruption, the corruption of the police, the corruption of the justice system.

[00:50:19] Speaker 04:
and obviously the extremely large amounts of drugs and the violence.

[00:50:27] Speaker 04:
I mean, to say, oh, well, he wasn't a Zeta, that's just wrong.

[00:50:31] Speaker 04:
The Zetas and the Gulf cartel were the same organization until 2010.

[00:50:37] Speaker 04:
And so there were... But he wasn't shown to have killed anybody.

[00:50:42] Speaker 04:
He didn't directly kill anyone or he wasn't proved to have.

[00:50:45] Speaker 04:
He certainly supervised.

[00:50:49] Speaker 04:
the cold room where people were kept while they decided whether to kill them.

[00:50:56] Speaker 04:
He certainly, on wiretap conversations, urged and agreed to the killing of someone who he thought was

[00:51:07] Speaker 04:
might have been snitching on him.

[00:51:10] Speaker 04:
I mean, and there was testimony in the trial that every member of the cartel benefited personally from the activity of the enforcers from the city.

[00:51:21] Speaker 05:
So do you know historically, speaking of the Eighth Amendment, whether the fine was viewed as a personal fine in terms of something the defendant could pay?

[00:51:33] Speaker 05:
And if it's grossly excessive,

[00:51:36] Speaker 05:
clear the defendant could not pay it?

[00:51:39] Speaker 04:
I don't think I think the proportionality I have to say first of all no your honor I'm not familiar with that history but to the extent that I know I think the proportionality is between the the fine and the crime and that

[00:51:56] Speaker 04:
the defendant's ability to pay.

[00:51:59] Speaker 04:
I mean, these factors all look to, the factors that the court has applied is they all look to what was the crime and what was the defendant's responsibility, but not really the ability to pay.

[00:52:12] Speaker 05:
So here Congress set a fine.

[00:52:15] Speaker 05:
That's right.

[00:52:17] Speaker 05:
All right.

[00:52:17] Speaker 05:
So this is how many thousands?

[00:52:20] Speaker 04:
Many thousands.

[00:52:21] Speaker 04:
That's correct.

[00:52:22] Speaker 04:
That's the factor the defendant has identified that weighs in his favor.

[00:52:26] Speaker 07:
And you don't take an issue with the relevance of that factor?

[00:52:29] Speaker 04:
No, we don't.

[00:52:31] Speaker 04:
Our argument is that in terms of looking at whether this is grossly disproportionate, this is a particularly extraordinary case.

[00:52:40] Speaker 04:
And the extraordinary nature of the facts and of the defendant's conduct and of what the harm is, what makes this larger than the maximum fine by many times, but yet still not grossly disproportionate.

[00:52:59] Speaker 07:
And where does the defendant's conduct fit into this?

[00:53:00] Speaker 07:
So under the principles that you outline, a person who had a much lesser role in the conspiracy

[00:53:07] Speaker 07:
could still have joint and several liability for all the proceeds taken in by the conspiracy over the period of the charge conspiracy.

[00:53:15] Speaker 04:
That's correct.

[00:53:17] Speaker 04:
And that's correct.

[00:53:18] Speaker 04:
And then I think that the

[00:53:21] Speaker 04:
The test seems to focus not only on the crime itself, but also on the harm caused by the defendant's conduct.

[00:53:30] Speaker 04:
And on the defendant, was the defendant the type of person at whom this kind of criminal prohibition was aimed?

[00:53:39] Speaker 04:
And that's focusing on the defendant himself, but here that factor weighs very heavily in favor of holding the defendant responsible.

[00:53:49] Speaker 07:
But the criminal prohibition being the underlying substance of offense?

[00:53:51] Speaker 04:
Correct.

[00:53:52] Speaker 07:
Which is the drug conspiracy.

[00:53:55] Speaker 04:
Correct.

[00:53:55] Speaker 04:
And so you look at what the defendant did, and he was an extremely central player in vast drug transactions that continued for a decade.

[00:54:09] Speaker 04:
He was a leader in the conspiracy.

[00:54:12] Speaker 04:
He supervised.

[00:54:13] Speaker 04:
He managed.

[00:54:14] Speaker 04:
He took advantage of the violence.

[00:54:16] Speaker 04:
Before that, he was a corrupt police officer who dealt in drugs and protected drug traffickers to benefit himself.

[00:54:27] Speaker 04:
And so that seems very central to what

[00:54:31] Speaker 04:
both the nature of this crime and to what the law is intended to prohibit.

[00:54:38] Speaker 07:
I'm not following what distinguishes him vis-a-vis conspiracy law from a courier.

[00:54:45] Speaker 04:
What distinguishes him from a courier is that his role, the harm that he caused, is very central, it's crucial, it's extremely

[00:54:58] Speaker 04:
It expands over, his conduct expanded over a vast part of this conspiracy.

[00:55:05] Speaker 04:
It wasn't a tiny part of it.

[00:55:07] Speaker 04:
He was both a corrupt police officer who joined the, who was involved in the conspiracy

[00:55:13] Speaker 04:
from 2001 and then joined the cartel itself, was a member of the cartel, was in charge of providing the cartel with all sorts of... Well that would be true for the

[00:55:39] Speaker 04:
certainly for the determination of the amount of forfeiture, but the Eighth Amendment issue is a separate issue, and there you might consider how the defendant fits.

[00:55:52] Speaker 07:
I mean, the... I guess I don't mean to belabor this point, but what I'm not following is

[00:55:57] Speaker 07:
When you say you have to consider how the defendant fits, I get that in some gestalt sense, a courier seems less significant than other people might seem in a drug conspiracy.

[00:56:07] Speaker 07:
But the law, it seems like the inquiry that's called for by Bajajian and that you sign onto in your brief looks at the focus of the law that's proved to have been violated.

[00:56:17] Speaker 07:
The law is drug conspiracy.

[00:56:20] Speaker 07:
With drug conspiracy, a courier is right in the heartland, I think.

[00:56:25] Speaker 04:
Well, and you're right, Your Honor, but it also looks to the nature of the harm caused by the defendant's conduct, and there you'd probably look and say, well, he, you know, he... So that's extra statutory.

[00:56:36] Speaker 07:
That's just a constitutional overlay that kicks in.

[00:56:39] Speaker 04:
You look... That's one of the factors that the Court has stated, and so...

[00:56:44] Speaker 04:
That seems like that might encompass, and it's a very fact-based inquiry, and it's very broad.

[00:56:51] Speaker 05:
I know, but we're trying to understand what the purpose is, all right?

[00:56:54] Speaker 05:
Because, you know, we see tons of cases where the district courts bemoan the cancer on the District of Columbia as a result of the illegal drug trade, and these conspiracies, these gangs, all that.

[00:57:11] Speaker 05:
And as I say,

[00:57:15] Speaker 05:
You know, if this case becomes the big, unique case, we all know that the principles stated are going to be argued in, quote, smaller cases.

[00:57:29] Speaker 05:
And just trying to understand what is the individual right that the Eighth Amendment protects against excessive fines.

[00:57:36] Speaker 04:
Well, it protects against a fine that is grossly disproportionate to the crime as viewed under the factors that the Supreme Court has identified.

[00:57:48] Speaker 05:
So the conduct that you suggest is that of a corrupt police officer, as opposed to a leader, a manager, et cetera.

[00:58:00] Speaker 05:
I mean, he was guarding the drugs.

[00:58:03] Speaker 05:
He was helping transport the drugs.

[00:58:05] Speaker 05:
He was guarding the safe room.

[00:58:06] Speaker 05:
I'm not trying to excuse.

[00:58:07] Speaker 05:
I'm just trying to understand the nature of his conduct as opposed to these other people who, because they were the big guys, had some information the government wanted.

[00:58:18] Speaker 05:
And so the government allowed them to plead to a smaller conspiracy.

[00:58:24] Speaker 05:
And therefore,

[00:58:27] Speaker 05:
you know, the forfeiture and the fines are way smaller and they could pay them.

[00:58:31] Speaker 05:
Well, now you're talking about, and that's the point I thought of, maybe what my colleague is getting at, you'd be in the same, making the same arguments with a courier.

[00:58:40] Speaker 04:
Well, Your Honor, if I could just clarify on the facts of this case, Mr. Kenoflores was not a small player.

[00:58:47] Speaker 04:
I mean, the district court found he was a manager or supervisor.

[00:58:50] Speaker 04:
He was both a corrupt police officer.

[00:58:52] Speaker 04:
What was he managing?

[00:58:53] Speaker 04:
He was managing one of the most important and extremely, what every witness testified, was an extremely important importation route at this, yes, isolated

[00:59:09] Speaker 05:
placed immediately on the Rio Grande directly across from- I know, but he's standing as a guard, a corrupt police officer, allowing things to go through.

[00:59:16] Speaker 05:
Well, but that- I'm just saying he wasn't the man, as your own grief acknowledges, he was not the leader, he was not calling the shots.

[00:59:25] Speaker 04:
He was calling the shots, Your Honor.

[00:59:27] Speaker 04:
He managed a large group of people.

[00:59:30] Speaker 04:
He was, just to be clear- A little many, approximately.

[00:59:34] Speaker 04:
They said, I mean,

[00:59:37] Speaker 04:
He had people who transported.

[00:59:40] Speaker 04:
He had people who stored.

[00:59:41] Speaker 04:
He had people who brought the drugs in.

[00:59:44] Speaker 05:
So he wasn't just one of the people.

[00:59:47] Speaker 05:
He was actually a manager.

[00:59:49] Speaker 04:
He was a plaza boss, as they called it.

[00:59:52] Speaker 05:
I know, but he was a plaza boss in a town of 5,000, right?

[00:59:57] Speaker 04:
The importance of the town was not in how many people lived there.

[01:00:00] Speaker 04:
The importance of the town, as every witness testified, was that it was

[01:00:05] Speaker 04:
a very important... It was a gateway.

[01:00:08] Speaker 04:
It was a gateway right on the Rio Grande in a place where they could cross the drugs over and large, large quantities of drugs went through there.

[01:00:16] Speaker 05:
And so he was in charge of all security?

[01:00:18] Speaker 04:
He was in charge of the security there.

[01:00:20] Speaker 04:
He was in charge of the site where they kept the people who had been kidnapped before they decided... And people were reporting to him.

[01:00:29] Speaker 04:
Yes, people were reporting to him.

[01:00:31] Speaker 04:
On the phone call, people called in and reported to him and said, this is what's going on.

[01:00:38] Speaker 04:
They got our drugs, the delivery in May 2007 of $2 million worth of marijuana that was seized.

[01:00:45] Speaker 04:
People immediately called and reported to him because he was in charge of it and he benefited directly from it.

[01:00:53] Speaker 04:
And so it's important.

[01:00:55] Speaker 04:
I mean, if there's a drug conspiracy in the District of Columbia that takes in $15 billion over a 10-year period and involves this kind of conduct, then maybe that $15 billion forfeiture would be proportionate there.

[01:01:12] Speaker 04:
But this is, we believe,

[01:01:14] Speaker 04:
a unique case.

[01:01:16] Speaker 07:
Can I just follow up on one final point along the same lines, which is that the four factor test that you signed on to in your brief, that's a distillation of the considerations that the court alluded to in budget occasion.

[01:01:27] Speaker 07:
The fourth factor, as you've mentioned a few times, is the nature of the harm caused by the defendant's conduct.

[01:01:33] Speaker 07:
And that's different from whether the defendant fit into the class of persons for whom the statute was principally designed, because that could encompass anybody in the conspiracy and a drug conspiracy at least.

[01:01:42] Speaker 07:
So the fourth factor at least has the potential of drawing a distinction based on the particular type of conduct in which the individual engages.

[01:01:50] Speaker 07:
But then when you say, when you apply that factor,

[01:01:54] Speaker 07:
As I read your brief on page 62, it says that the one sentence that refers to that fourth factor is the harm caused by the offense was, as the district court found, tragic.

[01:02:03] Speaker 07:
So when you say the offense, if that's just referring to the harm caused by the conspiracy, well then there's still no basis for drawing a distinction based on degree of conduct.

[01:02:11] Speaker 07:
But I take it what you're saying, what you're telling us now is no, you look at the particular conduct engaged by the individual.

[01:02:17] Speaker 04:
I think courts have looked at all the facts, all the relevant facts, and in this case, I think, if I could slightly amend that sentence in my brief, I would add that, and we know that the defendant's conduct, he was important, he was critical, he played a major role, he was involved in all these aspects, other than physically murdering someone himself as

[01:02:42] Speaker 04:
his friend Metro Trace assured him, you will not get your hands dirty.

[01:02:46] Speaker 04:
But he was very, very dirty.

[01:02:48] Speaker 04:
And that was a factor that this report could take into consideration.

[01:02:53] Speaker 04:
And we'd ask that the judgment be affirmed.

[01:02:56] Speaker 05:
Thank you.

[01:02:56] Speaker 05:
Thank you.

[01:02:59] Speaker 05:
All right, Counsel, for repellent.

[01:03:01] Speaker 05:
Would you like a couple of minutes?

[01:03:03] Speaker 01:
Thank you.

[01:03:03] Speaker 01:
I appreciate that.

[01:03:05] Speaker 01:
Let me just say with respect to the question about the nature of remedy, the government has made a statutory argument about what needs to, what the remedy is.

[01:03:15] Speaker 01:
And I respectfully suggest the government has that wrong.

[01:03:17] Speaker 01:
And I think I tried to deal with that directly at page eight and nine of our reply brief, so I won't repeat those arguments.

[01:03:25] Speaker 01:
Sorry.

[01:03:26] Speaker 01:
The council said that you had a complex of calls.

[01:03:32] Speaker 03:
Is that correct?

[01:03:32] Speaker 01:
Yes.

[01:03:38] Speaker 01:
Let me just say, I'm not trying on one hand, I'm not trying to minimize Mr. Conifloris' role.

[01:03:45] Speaker 01:
I mean, he was clearly involved in drug trafficking and of large quantities of drugs.

[01:03:55] Speaker 01:
But what we are talking about is, the government says Las Guerra was the place apparently, but there was no evidence of that.

[01:04:03] Speaker 01:
They had never introduced any evidence of how much drugs passed through that place.

[01:04:09] Speaker 01:
But the fact of the matter is that was a small town with a couple of little villages attached that was part of a much larger city.

[01:04:19] Speaker 01:
of Miguel Alamein that had other little towns part of that larger plaza.

[01:04:25] Speaker 01:
And that was part of the state of Tamalipas.

[01:04:30] Speaker 01:
And then there's other places in Mexico as well that my client never set foot.

[01:04:36] Speaker 03:
I'm just suggesting that- How is that relevant if the place where he was in charge was a very important transmission spot?

[01:04:48] Speaker 01:
There was no evidence of that.

[01:04:50] Speaker 01:
I mean, the witness is always important, but what does that mean?

[01:04:53] Speaker 01:
The border for Texas and Mexico, just Texas, is 1,200 miles long.

[01:04:59] Speaker 01:
And drugs were going through all of these plazas.

[01:05:04] Speaker 01:
They weren't all funneling into Los Guerra.

[01:05:07] Speaker 01:
They were crossing everywhere they could.

[01:05:09] Speaker 01:
The marijuana, they say, is attributed to him.

[01:05:11] Speaker 01:
That was found in a completely different location.

[01:05:14] Speaker 01:
I just think it's important to understand that I recognize that his conduct in terms of his sentencing and in terms of the forfeiture would be serious.

[01:05:31] Speaker 01:
I'm just suggesting that in relation to people who really did run 20,000 people, who really did kill and torture,

[01:05:41] Speaker 01:
dozens.

[01:05:42] Speaker 01:
That's what I'm trying to compare it to, Judge.

[01:05:45] Speaker 01:
And that's why I will rest on my sentencing and my order of charge.

[01:05:50] Speaker 05:
Thank you.

[01:05:51] Speaker 05:
We'll take the case under advisement.

[01:05:58] Speaker 05:
Case number 13-5153.

[01:05:59] Speaker 05:
Oh, excuse me.

[01:06:02] Speaker 05:
Mr. Gilbert?

[01:06:03] Speaker 05:
I gather you were appointed by the court.

[01:06:06] Speaker 01:
Yes, Your Honor.

[01:06:07] Speaker 05:
And the court wishes to express its appreciation to you for your always fine work.

[01:06:12] Speaker 01:
Thank you.

[01:06:12] Speaker 01:
It's been a challenging case.

[01:06:14] Speaker 05:
Yes.