[00:00:14] Speaker 03:
your honor.

[00:00:15] Speaker 03:
Your honor, I'm going to depart a little bit from the formal

[00:00:26] Speaker 03:
court case law, and I'm referring to Pew, Rosales-Morales, and this court's decisions in hand and others cited, there isn't a shred of evidence in this record to show, not a shred, to show that any acts of bribery, of violence, or running an international narcotics importation enterprise

[00:00:47] Speaker 03:
occurred after October 31st of 2010.

[00:00:51] Speaker 03:
The government's position is simple.

[00:00:54] Speaker 03:
They have two parts.

[00:00:55] Speaker 03:
The first argument is that he pled guilty to a conspiracy that ran through 2012.

[00:01:01] Speaker 03:
But as this court said in the United States v. Turner, the outer date of the conspiracy doesn't define the offense for sentencing purposes.

[00:01:09] Speaker 03:
What we look to are what facts are there that occurred after October 31st of 2010.

[00:01:14] Speaker 03:
There are none.

[00:01:16] Speaker 03:
Their retreat position, their fallback, is this man, Zambada, who, quote, testified, unquote, through the presence of an agent, referred vaguely to some undefined letters that Mr. Beltran Lieber sent from jail.

[00:01:30] Speaker 03:
Let's examine that.

[00:01:32] Speaker 03:
Mr. Beltran Lieber was in jail from January 2008 onward, long before

[00:01:43] Speaker 03:
Nobody knows.

[00:01:45] Speaker 03:
There's not a shred of evidence in the record as to who those letters went to, what those letters were about.

[00:01:51] Speaker 03:
For all we know, Mr. Beltran-Leaver, if they existed, may have been complaining about the jailhouse food or sending a birthday card to somebody.

[00:01:58] Speaker 03:
The fact of the matter is that those six points, and that's an important six points, cannot be sustained under any circumstances here.

[00:02:08] Speaker 03:
And why is that significant?

[00:02:10] Speaker 03:
Because if you start with a base office level of 38, if any of you have the acceptance of responsibility and the six points don't add in, that puts them under, far under a presumptive life range.

[00:02:23] Speaker 03:
I want to talk about that acceptance of responsibility issue, because that's also important.

[00:02:28] Speaker 03:
That's another example of what I contend is clear legal error.

[00:02:32] Speaker 02:
Can I just ask you one question about the ex post facto?

[00:02:35] Speaker 02:
So if you credit the notion that there was correspondence after he was in jail, I know that you'd dispute that.

[00:02:43] Speaker 02:
But if one were to credit that, would that end your ex post facto argument in your view?

[00:02:48] Speaker 03:
Absolutely not.

[00:02:49] Speaker 03:
As I said, Your Honor, what is that?

[00:02:51] Speaker 03:
First of all,

[00:02:59] Speaker 03:
of unreliable hearsay.

[00:03:01] Speaker 03:
A, unsworn statements

[00:04:12] Speaker 03:
these ephemeral letters that never once surfaced.

[00:04:15] Speaker 03:
Those letters, what do they show?

[00:04:19] Speaker 03:
They're gossamer.

[00:04:21] Speaker 03:
Because nobody knows what the contents are.

[00:04:23] Speaker 03:
Nobody knows who they were sent to.

[00:04:26] Speaker 03:
So they just don't substantiate any claim to apply those enhancements.

[00:04:31] Speaker 04:
Did you say we don't know to whom they were sent?

[00:04:34] Speaker 04:
Did you say we don't know to whom they were sent?

[00:04:36] Speaker 03:
No.

[00:04:37] Speaker 03:
What I said in my brief, Judge Ginsburg, is as follows.

[00:04:40] Speaker 03:
We have this unsworn out-of-court statement related by the agent.

[00:04:45] Speaker 03:
We don't know who those letters were sent to.

[00:04:48] Speaker 03:
We don't even know if those letters exist.

[00:04:50] Speaker 03:
We don't know what those letters said.

[00:04:51] Speaker 03:
We don't even know when the letters were sent.

[00:04:53] Speaker 03:
He was in jail.

[00:04:55] Speaker 03:
My client was in jail from January of 2008.

[00:04:58] Speaker 03:
That's another important fact because the amendments don't take place until November 1st, 2010.

[00:05:07] Speaker 03:
So they've got, there just is no evidence to substantiate that.

[00:05:12] Speaker 03:
So as to the acceptance of responsibility, that should be an easy call for this court.

[00:05:17] Speaker 03:
And why do I say that?

[00:05:19] Speaker 03:
Because up through, up through October 2016, when Judge Leon, and I say this with deference rather noisily, rejected the proposed Level 42 sentence.

[00:05:31] Speaker 03:
Everybody was on board, including the government, and a probation office, with three points off for acceptance and responsibility.

[00:05:39] Speaker 03:
My client never got up there and testified at that what I call the Potemkin village of a sentencing hearing and denied and falsely made statements.

[00:05:47] Speaker 03:
All he did was cross-examine the government's agents.

[00:05:51] Speaker 03:
It's the government's burden to substantiate the enhancements.

[00:05:54] Speaker 03:
It's not his burden to say that they're right.

[00:05:56] Speaker 03:
It's his burden to disprove them.

[00:05:58] Speaker 03:
And so he cross-examines the agents who are sitting there relating this classic hearsay from people facing life sentences with every incentive to curry favor with the prosecution.

[00:06:10] Speaker 03:
My client was denied the right of cross-examination, which he asked for twice.

[00:06:15] Speaker 03:
It's not a ground to deny a leadership enhancement, I'm sorry, an acceptance of responsibility credit, particularly here.

[00:06:23] Speaker 03:
Because when Judge Leon denied the acceptance of credit,

[00:06:36] Speaker 03:
because the defendant contested, as he had a constitutional right to do, the validity of the enhancements.

[00:06:45] Speaker 03:
He didn't get up there and falsely testify unlike the cases cited by the government.

[00:06:48] Speaker 03:
He just put them to the burden.

[00:06:50] Speaker 03:
And as I said to you, they failed miserably with respect to that burden.

[00:06:55] Speaker 03:
It's legal error to deny the acceptance of responsibility credit, particularly under the circumstance where everybody was on board with that up through October of 2016.

[00:07:18] Speaker 03:
and I reply.

[00:07:23] Speaker 03:
Well, for better or for worse, they're here.

[00:07:26] Speaker 03:
They should be adhered to.

[00:07:27] Speaker 03:
At least they should be respected.

[00:07:29] Speaker 03:
That doesn't appear in the record.

[00:07:32] Speaker 03:
So the acceptance responsibility credit should have been given to Mr. Beltran Lever.

[00:07:38] Speaker 02:
So acceptance of responsibility comes into play if you add it on to the erroneous imposition of an enhancement, right?

[00:07:46] Speaker 02:
Because you need to get all the way down below 43.

[00:07:48] Speaker 03:
It's easy.

[00:07:49] Speaker 03:
Let me demonstrate it for you.

[00:07:58] Speaker 03:
November 2010 guidelines, because they're an applicable.

[00:08:03] Speaker 03:
If you give three points off the 38, which everybody was prepared to do for October 2016, that takes us to a 35.

[00:08:15] Speaker 03:
Now, I said in my brief that they never proved the gun bump.

[00:08:20] Speaker 03:
I mean, that cock and bull aloha story I spelled out, they walked that one back.

[00:08:24] Speaker 03:
I spelled that out in our brief.

[00:08:26] Speaker 03:
That's two points.

[00:08:41] Speaker 02:
So can I ask you, before your time runs out, you'd made an argument in your opening brief that it was erroneous to disallow withdrawal of a guilty plea?

[00:08:51] Speaker 02:
It was erroneous?

[00:08:52] Speaker 02:
To not allow withdrawal of a guilty plea?

[00:08:55] Speaker 02:
That's right.

[00:08:55] Speaker 02:
And then I didn't see that argument in your reply brief?

[00:08:58] Speaker 03:
I didn't treat it in the reply brief.

[00:08:59] Speaker 03:
You know, I had spatial limitations.

[00:09:01] Speaker 03:
The only observation I would make is this.

[00:09:39] Speaker 03:
When he said was, I was coerced into doing this, I wasn't given rule 11 call, there's a fair amount of case law that quits.

[00:10:41] Speaker 01:
I'd like to start with the ex post facto issue that counsel addressed first and point the court to three specific places in the record that support the notion that Mr. Beltran Leyva was actually engaged in controlling the drug organization after he was incarcerated.

[00:10:59] Speaker 01:
I still believe that as a legal matter, that we're correct on the law that because the conspiracy actually continued up through the time of the indictment, that he actually has to affirmatively show withdrawal in order to not be part of that conspiracy.

[00:11:14] Speaker 01:
The Turner case that was discussed in the briefs was a very different case in which the object of the conspiracy was completed, and the question was whether simply concealing the conspiracy was enough to continue it for purposes of statute of limitations.

[00:11:25] Speaker 01:
But all that, the sort of legal question aside, the law is on our side, but the legal question aside, the facts here show... So when you say the legal question aside, can I just ask you something?

[00:11:34] Speaker 02:
So your view of the law is that as long as the conspiracy post dates the change in the guidelines, it doesn't matter if the conduct giving rise to the enhancement.

[00:11:45] Speaker 02:
post-dates the change that happened.

[00:11:46] Speaker 01:
Absolutely, Your Honor, that's correct.

[00:11:48] Speaker 01:
And the Turner case, again, we said that the charge, so if the government says it continues up through 2012 and the evidence doesn't support that, if the conspiracy is complete by that point, then just the date stated in the charge is not enough.

[00:12:04] Speaker 01:
However, this is a conspiracy.

[00:12:06] Speaker 01:
It wasn't a conspiracy.

[00:12:07] Speaker 01:
Well, it was a conspiracy in that case, but the object was complete.

[00:12:10] Speaker 01:
Here, the conspiracy clearly continued beyond his incarceration.

[00:12:15] Speaker 02:
Why does it make sense under the ex post facto clause to only focus on how long the conspiracy persists rather than focusing on the conduct that gives rise to the enhancement?

[00:12:28] Speaker 01:
Well, Your Honor, this is similar to the one book rule that's discussed to a great degree in the notes in B1.11.

[00:12:37] Speaker 01:
which is the sort of issue of when can you apply an enhancement that was enacted after the conduct that underlay it.

[00:12:46] Speaker 01:
And the idea is that the person is on notice because he continues in the conspiracy past those 2010 amendments, that he's on notice that by continuing to be in the conspiracy, that he is subject to those enhanced penalties.

[00:12:59] Speaker 01:
But I don't think that this court needs to resolve that issue because of... And he's on notice and then therefore he needs to withdraw?

[00:13:04] Speaker 01:
That's correct, Your Honor.

[00:13:05] Speaker 01:
Absolutely.

[00:13:06] Speaker 01:
And the Supreme Court in Smith made clear that it's the defendant's burden to withdraw by participating in a conspiracy, in this case a very violent conspiracy, in which he was supervising the killing of members of other drug trafficking organizations.

[00:13:18] Speaker 01:
He had an affirmative duty to withdraw.

[00:13:20] Speaker 01:
But that he actually, in fact, affirmatively continued directing the activities of others in the conspiracy.

[00:13:28] Speaker 01:
And I can point to three places in the record to support that.

[00:13:30] Speaker 01:
First of all, Mr. LaCarre spoke about the letters, and that's at app 420.

[00:13:35] Speaker 01:
That's some testimony from Villarreal that, pardon me,

[00:13:40] Speaker 01:
Statements from beer reals 302 where they talked about him sending messages through his sister while he was in jail but the second place that this was discussed was it at 265 through 69 and that was from mr. Zambada and I have that here in front of me the there was actually a question about what the

[00:13:58] Speaker 01:
The messages were that were being conveyed.

[00:14:00] Speaker 01:
They were being conveyed sort of indirectly through transcripts of visits that Mr. Beltran-Lev received.

[00:14:06] Speaker 01:
And the question was asked what the general nature of the messages were.

[00:14:09] Speaker 01:
And the answer was, Mr. Zimbabwe Garcia stated that the general messages were just, continue running the Beltran-Lev organization for the defendant.

[00:14:17] Speaker 01:
And those specifically were passed on to Mr. Beltran Leyva's son and to another person called Chapo Ysidro.

[00:14:25] Speaker 01:
And there was testimony that Chapo Ysidro was someone who was engaged in methamphetamine trafficking for Mr. Beltran Leyva.

[00:14:32] Speaker 01:
The third place I'd like to point the court to, and I apologize, I didn't specifically cite this one in my brief, but it's in the appendix at page 67.

[00:14:39] Speaker 01:
And this is quoting from the underlying extradition documents.

[00:14:45] Speaker 01:
And in the underlying extradition documents,

[00:14:47] Speaker 01:
There was evidence that in 2011, so this clearly ties it to a time after October 2010, in 2011 that there was another member of the organization said that they were receiving messages from Mr. Beltran Leyva in prison regarding the direction of the drug trafficking conspiracy.

[00:15:07] Speaker 01:
So this court doesn't need to address the more complicated legal issue.

[00:15:13] Speaker 01:
I mean, I think this law is on our side.

[00:15:15] Speaker 01:
But in this case, there was adequate evidence to indicate that he was not just a passive member, which would still be enough, but an active member of the conspiracy after 2010.

[00:15:25] Speaker 02:
And for us to take account of that evidence, if the district court didn't, as far as we know, rely on that as the basis for the enhancements, then because it's plain error, is that?

[00:15:35] Speaker 01:
Your Honor, yes.

[00:15:35] Speaker 01:
I mean, the district court had no opportunity to determine whether or not there was an ex post facto violation.

[00:15:40] Speaker 01:
So he bears the burden of preventing in order to prevail on this claim.

[00:15:45] Speaker 01:
If I may then turn to the acceptance of responsibility credit that council addressed next.

[00:15:50] Speaker 01:
First of all, the guidelines make clear that this is something in which the district court is entitled to great deference.

[00:15:56] Speaker 01:
That's in footnote five of three one point one.

[00:15:59] Speaker 01:
And this court reviews for abuse of discretion.

[00:16:01] Speaker 01:
So the question is whether there was there was any reasonable basis for the district court

[00:16:06] Speaker 01:
to deny an acceptance of responsibility credit.

[00:16:09] Speaker 01:
And the first reason that we've pointed to is that, at 164, when asked whether or not he was one of the leaders of the Beltran-Leva organization, Mr. Beltran-Leva said, no, sir.

[00:16:19] Speaker 01:
He denied being a leader of the organization, and yet the district court subsequently found that he was, in fact, a leader of the organization.

[00:16:27] Speaker 01:
He was the number two member of this organization.

[00:16:31] Speaker 01:
He directed

[00:16:32] Speaker 01:
hundreds of people who were underneath him.

[00:16:34] Speaker 01:
And that was one basis on which the district court denied the acceptance credit.

[00:16:39] Speaker 01:
He also, as Mr. Lacar mentioned this morning, he also claimed in seeking to withdraw his guilty plea that he had actually pleaded guilty under duress.

[00:16:49] Speaker 01:
Now, that was directly inconsistent with his statements in the Rule 11 colloquy.

[00:16:53] Speaker 01:
And the district court had

[00:16:55] Speaker 01:
simply no basis on which to credit that claim.

[00:16:58] Speaker 01:
But he also, and he also has never claimed at any time that he was factually innocent.

[00:17:03] Speaker 01:
He chose to plead guilty in this case, and he has at no time asserted that he was in fact innocent of being a member of the Beltran-Leva drug trafficking organization.

[00:17:15] Speaker 01:
So whether or not that's seen upon known,

[00:17:18] Speaker 01:
It is something that this court has said is one of the factors that the district court can consider.

[00:17:24] Speaker 01:
And the district court in this case did not abuse its discretion by concluding that he was not entitled to acceptance.

[00:17:30] Speaker 02:
Can you talk to me about the withdrawal of a guilty plea?

[00:17:32] Speaker 01:
Sure, yes.

[00:17:32] Speaker 01:
And I'm sorry, I sort of looped that in.

[00:17:35] Speaker 02:
Yeah, just focusing on our decision.

[00:17:37] Speaker 02:
So in forward, we started off by recognizing that withdrawal of a guilty plea before sentencing is generally liberally granted.

[00:17:44] Speaker 02:
Correct.

[00:17:45] Speaker 02:
And as I understand the proceedings below, there was no mention in the Rule 11 colloquy about the possibility of forfeiture.

[00:17:54] Speaker 01:
That's correct, Your Honor.

[00:17:56] Speaker 02:
So that's not in keeping with Rule 11.

[00:17:59] Speaker 01:
That's correct.

[00:17:59] Speaker 01:
That was the rule of an error.

[00:18:01] Speaker 02:
Right.

[00:18:01] Speaker 02:
And so then the question becomes, is that the sort of significant thing that ought to be enough to give rise to the kind of liberally granted notion that we established in Ford?

[00:18:15] Speaker 02:
And your argument, I think, was that it shouldn't be in these circumstances because the indictment dealt with forfeiture.

[00:18:21] Speaker 02:
Correct.

[00:18:22] Speaker 02:
But suppose that we thought, and you'll resist this, but just suppose that we thought that the reference to the fact that he read the indictment isn't enough, then you don't make the argument that just failing to address forfeiture at all is just not a big deal.

[00:18:39] Speaker 01:
Well, Your Honor, I thought I had essentially made that argument, and I'm happy to make it now, but I think if I can just kind of... But do you make it in the brief?

[00:18:46] Speaker 02:
I mean, I didn't see that argument.

[00:18:48] Speaker 02:
It seemed like you were resting on the notion that we're okay on the failure to mention forfeiture because there was a reference in the indictment, and the indictment talks about forfeiture.

[00:18:56] Speaker 01:
Your Honor, I spoke more broadly about the standard from Ford, whether or not this is something that's one of the core inquiries of Rule 11, and I apologize if I didn't make it clear in my brief that I understood our position to be that this forfeiture is not something that is one of the core inquiries of Rule 11.

[00:19:12] Speaker 01:
And if I can kind of step back here, the case law from this court on which Ford relied was primarily from this court's en banc decision in the 1975 case.

[00:19:22] Speaker 01:
And in 1975, the text of Rule 11 was significantly different than it was today, and essentially it was the due process standard.

[00:19:30] Speaker 01:
And so this court's early cases, ensuring that a guilty plea is knowing and voluntarily entered,

[00:19:36] Speaker 01:
I mean, of course, if there's not sort of compliance with Rule 11, then before sentencing, the person ought to be allowed to withdraw their guilty plea.

[00:19:43] Speaker 01:
But Rule 11, as you know, has expanded significantly since then.

[00:19:46] Speaker 02:
But pre-Ford?

[00:19:48] Speaker 01:
Yes, Your Honor, pre-Ford, although there have been additional amendments.

[00:19:51] Speaker 02:
The big move was before Ford, and we still have the language.

[00:19:54] Speaker 01:
That's correct, but Ford also sort of, you could say it speaks out of both sides of its mouth, Ford also says that it shouldn't be, that ordinarily it shouldn't be allowed if it, excuse me, it says, will not reverse, the court said, will not reverse a trial court in its application of Rule 11, except when it has failed to address the rule's core inquiries.

[00:20:15] Speaker 02:
Yeah, so on core inquiry and kind of substantial compliance, all these factors get into roughly some sense of how big a deal is it?

[00:20:22] Speaker 02:
Correct.

[00:20:23] Speaker 02:
Absolutely.

[00:20:24] Speaker 02:
And with forfeiture, if you have a case in which forfeiture is hundreds of millions of dollars, and here it was over $500 million, right?

[00:20:31] Speaker 01:
Yes.

[00:20:32] Speaker 01:
Yes, Your Honor.

[00:20:33] Speaker 02:
It seems like it's at least conceivable that failing to mention forfeiture could be a big deal to somebody because if they don't have any idea that they're going to lose half a billion dollars, then maybe that would affect the calculus on whether to plead guilty.

[00:20:45] Speaker 01:
If I may answer the question, I believe I'm out of time.

[00:20:49] Speaker 01:
Absolutely, if they were unaware of it, I would agree with you, but there's no indication here that he was unaware and when in fact it was included in the indictment.

[00:20:59] Speaker 02:
But the only argument you have about why he was aware or should have been aware is the reference to the indictment, that he read the indictment.

[00:21:05] Speaker 01:
Your Honor, yes, that's the only thing that we've cited.

[00:21:07] Speaker 01:
I'm really not sure to what extent forfeiture was discussed prior to the plea.

[00:21:13] Speaker 01:
There was a lot of back and forth, and I'm not sure to what extent forfeiture was discussed.

[00:21:17] Speaker 02:
And so on the indictment, can I just ask you one final question, which is, it seems like under Ford, in Ford itself, the government made the argument that it's OK not to have gone through the nature of the charge because that was something that was in the indictment.

[00:21:32] Speaker 02:
And then we said, well, that's not enough.

[00:21:35] Speaker 02:
Just the fact that it was in the indictment isn't enough.

[00:21:38] Speaker 02:
And so why doesn't that logic tend to counter your notion that it's OK not to mention forfeiture because forfeiture was mentioned in the indictment?

[00:21:45] Speaker 01:
Well, Your Honor, really the only thing that the court would have instructed him in the Rule 11 colloquy is you are potentially subject to forfeiture.

[00:21:52] Speaker 01:
And that is exactly what he was told in the indictment.

[00:21:54] Speaker 01:
So I think it's different than sort of the larger question of understanding the nature of the charges that was at issue in Ford.

[00:22:00] Speaker 04:
I want to take you back to the ex post facto clause for just a moment.

[00:22:09] Speaker 04:
I take your point, to be your point, that the evidence that the defendant continued to direct or have a role in directing the conspiracy without having affirmatively withdrawn.

[00:22:27] Speaker 04:
Makes him a liable for acts that occurred after the change in the guidelines.

[00:22:36] Speaker 04:
Is there any evidence of bribery after that change?

[00:22:39] Speaker 01:
Your Honor, there's nothing in the record that, in this record, no.

[00:22:44] Speaker 01:
I mean, the drug trafficking organization... This is the record we have.

[00:22:46] Speaker 01:
Correct.

[00:22:47] Speaker 01:
The drug trafficking organization was huge and it was ongoing, but no, there's nothing in this record to indicate bribes or the other challenge enhancements.

[00:22:55] Speaker 04:
So is your argument extensive to the point that he's liable for bribery that occurred

[00:22:59] Speaker 04:
before the change in the guidelines because he didn't withdraw at or after the change in the guidelines?

[00:23:06] Speaker 01:
That's correct, Your Honor.

[00:23:07] Speaker 01:
That's rather far-reached.

[00:23:10] Speaker 01:
Well, Your Honor, I don't think so under the Supreme Court's law regarding conspiracy.

[00:23:14] Speaker 01:
The Smith case that this Court can look at where the person remains responsible for everything that has happened in the conspiracy prior to the time of their withdrawal.

[00:23:25] Speaker 02:
And I guess it's also plain error.

[00:23:28] Speaker 01:
That's correct.

[00:23:28] Speaker 01:
Is plain error a question?

[00:23:29] Speaker 01:
Is that part of your argument?

[00:23:31] Speaker 01:
Absolutely, Your Honor.

[00:23:32] Speaker 01:
I think that even if this court considered it a close question, it wouldn't rise to the level of plain error.

[00:23:38] Speaker 04:
I think in the cases you're referring to, typically the issue was about the quantity of drugs.

[00:23:44] Speaker 04:
And having set the conspiracy in motion, pardon me, it's quite reasonable to expect that the same quantities, you know, the quantities would continue and count against the defendant.

[00:23:54] Speaker 04:
This is a little bit different with specific acts.

[00:23:56] Speaker 01:
Well, Your Honor, he did supervise the paying of millions of dollars in bribes and did supervise the killing of... Prior to 2010.

[00:24:03] Speaker 01:
Correct, Your Honor.

[00:24:04] Speaker 01:
Yes, and he continued, we have the affirmative evidence that he continued to direct the conspiracy.

[00:24:08] Speaker 01:
He didn't tell the conspiracy to stop doing that.

[00:24:10] Speaker 04:
Well, we don't know that it did it, though.

[00:24:11] Speaker 04:
That's the point, right?

[00:24:13] Speaker 01:
We know that it did continue.

[00:24:14] Speaker 01:
Well, Your Honor, there is evidence in the record of the ongoing war between the Beltran-Leva organization and the Sinaloa cartel.

[00:24:21] Speaker 01:
That is included in the PSR and we decided to do it in the brief.

[00:24:24] Speaker 04:
But those are not bribes.

[00:24:26] Speaker 01:
That's correct, Your Honor.

[00:24:26] Speaker 01:
So that would support the violence enhancement, but not the bribery enhancement.

[00:24:30] Speaker 04:
Thank you.

[00:24:31] Speaker 01:
Thank you.

[00:24:45] Speaker 03:
require the defendant to have tried to bribe somebody.

[00:24:50] Speaker 03:
Secondly, personal participation.

[00:24:53] Speaker 03:
Let me read you the record very quickly from page 265 to 266, what they're telling you about Mr. Beltran's participation post-2008.

[00:25:04] Speaker 03:
January 2008.

[00:25:06] Speaker 03:
Yes.

[00:25:08] Speaker 03:
Yes.

[00:25:21] Speaker 03:
And what did they reveal?

[00:25:22] Speaker 03:
Instead, these transcripts revealed a defendant was said to have coded language, in which Mr. Balarejo objected and said, where is this information?

[00:25:30] Speaker 03:
It hasn't been produced.

[00:25:32] Speaker 03:
January of 2008 to October 31st of 2010, that's a long stretch while my client was languishing in jail to try to

[00:25:43] Speaker 03:
put a life imprisonment on a guy where there isn't a shred of evidence of bribery or any of these other post-2010 enhancements.

[00:25:51] Speaker 03:
Judge Srinivasan, you asked about Turner.

[00:25:56] Speaker 03:
I'm sorry, you did ask about Turner.

[00:25:59] Speaker 03:
There isn't any act of concealment here.

[00:26:01] Speaker 03:
No, indictment isn't alleged acts of concealment, and there isn't any evidence in that Potemkin village of a sentencing hearing that my client tried to conceal anything.

[00:26:11] Speaker 03:
So it's quite a stretch for them to try to hang their hat on Turner when the indictment, he pled guilty to a conspiracy.

[00:26:18] Speaker 03:
He didn't plead guilty to doing these acts after October of 2010.

[00:26:22] Speaker 03:
Now, I think for leadership,

[00:26:26] Speaker 03:
The fact of the matter is, they've got an elderly problem and a fields problem, but district court judge did not cite anything that Mr. Beltran-Leaver said when he pled guilty as a basis for enhancing, for denying him the acceptance of responsibility.

[00:26:43] Speaker 03:
I hang up on that.

[00:26:45] Speaker 03:
But district judge decided to hang him and decided to deny him the acceptance of responsibility credit.

[00:26:52] Speaker 03:
because of the enhancements, not because of any statements he made at the time of this plea.

[00:26:58] Speaker 03:
Lastly, U.S.

[00:26:59] Speaker 03:
judgment of us and about forfeiture, $570 million based on the word of an addict.

[00:27:04] Speaker 03:
And guess what?

[00:27:05] Speaker 03:
I made an error in my reply brief.

[00:27:08] Speaker 03:
Page four, page four of my supplemental appendix, that's where I should have cited Mr. Villarreal, that con man poseur of a cop,

[00:27:19] Speaker 03:
What the government said, he saw one to two shipments, not seven to ten shipments over a period of time, one to two shipments, and that's how they extrapolate $579 billion.

[00:27:33] Speaker 03:
Nobody gave my client any idea how this forfeiture calculation was going to work out, and it's as unreliable as everything else in this sentencing record.

[00:27:42] Speaker 03:
So I ask in closing that you consider the fact that Judge Leon showed a predisposition to light this sentence up from day one, from October 2016, and remand it to a different judge, because I respectfully suggest that it's not my practice to throw a brick bat at a federal judge

[00:28:00] Speaker 03:
But I respectfully suggest that you would have a lot of trouble separating this prior decision-making from a remand proceeding.

[00:28:10] Speaker 00:
Thank you.

[00:28:10] Speaker 00:
We'll take the case under advisement.