[00:00:00] Speaker 01: Case number 20-3073. [00:00:02] Speaker 01: United States of America versus Juan Jose Martinez Vega, also known as Chiguero, also known as Gentile Alvis Pitino, a balance. [00:00:10] Speaker 01: Mr. Gilbert, for the balance. [00:00:12] Speaker 01: Mr. Richmond, for the belief. [00:00:14] Speaker 00: Good morning, counsel. [00:00:15] Speaker 00: Mr. Gilbert, please proceed when you're ready. [00:00:18] Speaker 05: Thank you, your honor. [00:00:19] Speaker 05: May it please the court. [00:00:21] Speaker 05: My name is Richard Gilbert and I have represented Mr. Martinez Vega since his initial appearance in Washington DC in 2006. [00:00:32] Speaker 05: That means I represented him at the trial during the first appeal before this court and on the resentencing. [00:00:39] Speaker 05: I know from experience that the direction this argument will take will depend primarily on what the court is interested in discussing. [00:00:47] Speaker 05: But let me just say at the outset that I believe that there are two important legal issues that are distinct, but they depend on which category of putative participant you think is [00:01:02] Speaker 05: qualifies for the, the grass through the aggravating role. [00:01:07] Speaker 05: I do think that that's not been particularly set forth with clarity by either the district court or frankly by the prosecution in its brief. [00:01:19] Speaker 05: But one category, of course, would be people who am I have described as employees of Mr. Martinez Vega. [00:01:26] Speaker 05: Patently, if he's moving literally tons and tons of material, he's going to need people to help him with that, whether it's other vehicles, whether it's other boats, whether it's loading, unloading, and so forth. [00:01:39] Speaker 05: But as set forth in our brief, I believe that the issue is what is the appropriate mens rea? [00:01:46] Speaker 05: And I've argued that the only mens rea that would be a violation of a statutory offense, meaning a crime against the United States, is if the participants knew or intended that the drugs would be transported or imported into the United States. [00:02:02] Speaker 05: I'm aware that in the original appeal at footnote number nine, the court specifically sort of rejected my argument that the mens rea had to be the same as the defendants, but it did not in that footnote suggest what other mens rea might be applicable. [00:02:21] Speaker 05: The district court has never articulated a different mens rea despite a specific request on my part at the end of the evidentiary hearing that if the court disagreed with what we asserted was the mens rea that the court at least make clear what that was. [00:02:39] Speaker 05: And of course the court never did express a different mens rea. [00:02:43] Speaker 05: So I think if you [00:02:46] Speaker 05: I think you have to decide that if you're gonna consider the employees as being participants in the conspiracy. [00:02:55] Speaker 05: The second issue has to do with what we've been calling the re-insertado witnesses, the cooperating witnesses by the government from Columbia. [00:03:02] Speaker 05: And I think the issue there is whether this court is going to adopt the definition of control from United States versus Salinas, which is a case we cited at page eight of our reply brief. [00:03:16] Speaker 05: And essentially, that says that you control someone when you tell them what to do, when to do it, and where to do it. [00:03:25] Speaker 05: With respect to the question of mens rea, I do want to caution the court. [00:03:31] Speaker 05: I know that in finding that Mr. Martinez Vega had the requisite knowledge, the court at one point talked about common knowledge that fart drugs were going to the United States. [00:03:45] Speaker 05: But I think that the court was drawing that basically on what it perceived the status of Mr. Martinez-Vego within the FARC to be. [00:03:56] Speaker 05: And I think if you extend that idea, common knowledge extends all the way down to uneducated young men from the village who might be assisting Mr. Martinez-Vego on a particular trip. [00:04:08] Speaker 05: I think what the court is essentially doing is creating a presumption [00:04:13] Speaker 05: that if you're transporting drugs or trafficking in drugs in Colombia that you know they're going to the United States. [00:04:20] Speaker 05: And I think that would be impermissible of court to do that. [00:04:23] Speaker 03: Mr. Gilbert, in your view, did the district court need to identify a specific participant in order for the supervisor enhancement to be valid? [00:04:40] Speaker 05: Well, with respect to the category I've been discussing, I think the answer to that is no, because we don't know who those people were. [00:04:47] Speaker 05: And there's no way the judge could have said, well, you know, it was Guillermo Lopez. [00:04:54] Speaker 05: Now, it might be different if Mr. Martinez Vega had some trusted lieutenant. [00:04:59] Speaker 05: that was with him on all his trips and so forth. [00:05:02] Speaker 05: And you do see that sort of thing happen in some drug cases. [00:05:07] Speaker 05: But I think it would have been sufficient for the judge if the mens rea had existed for the judge to say, oh, those people that helped him move all those uniforms and weapons in the boats were participants because the drugs were coming back and somehow they knew there were drugs inside the bags and that [00:05:30] Speaker 03: How do you demonstrate mens rea with respect to a group of people or to a group of individuals that are not specifically identified? [00:05:41] Speaker 05: Well, I think you'd have to have at least some evidence. [00:05:45] Speaker 05: After all, it is the government's burden. [00:05:47] Speaker 05: You'd have to have some evidence that these people had the requisite mens rea. [00:05:54] Speaker 05: I know the government has argued that [00:05:59] Speaker 05: There's an issue of willful blindness but I think as we talked about in our reply brief I think the government had to show something more than just a substantial likelihood of the risk that the drugs would be going to the United States. [00:06:15] Speaker 05: I do think the court has cited to an earlier Martinez case, not my defendant, but from 2007. [00:06:23] Speaker 05: And I think the court has previously ignored significant differences. [00:06:29] Speaker 05: Most importantly, that the drugs in that case were seized after crossing the land border between Honduras and Guatemala. [00:06:42] Speaker 05: So they were in Central America and I think that the expert testimony both in that case in this case is clear that if the drugs are going through Central America, they are in fact going to the United States. [00:06:53] Speaker 05: But that was complete. [00:06:54] Speaker 05: That was not the fact here. [00:06:57] Speaker 05: And, you know, if a if an exhibit or [00:07:02] Speaker 05: chart has been introduced in evidence, I don't think it's necessary that its evidentiary value be limited to that which was expressly talked about at the trial. [00:07:14] Speaker 05: And in this particular case, I'm referring to the government exhibit 320C, which is a map showing the flows of cocaine around the world. [00:07:24] Speaker 05: back during the time of this conspiracy. [00:07:27] Speaker 05: It does appear, it doesn't appear in our documents in this appeal, but it does appear in the original appendix at page 1802. [00:07:39] Speaker 05: You can see that map and at no point does anybody, the district court, the government talk about all of those flows of cocaine coming out of the north eastern part of South America and going to Africa or Europe. [00:07:54] Speaker 05: And so that's where these drugs would have ended up going to Venezuela, as I tried to describe the geography of Bechata and that part of Colombia. [00:08:06] Speaker 05: If there are no other questions, I'd like to reserve the remaining two minutes. [00:08:12] Speaker 00: I just have one quick question for you. [00:08:16] Speaker 00: Would it not be enough if there's testimony to the effect that everybody in the area knew that the destination of the drugs was the United States? [00:08:27] Speaker 00: and that testimony was not refuted. [00:08:30] Speaker 00: Can't that kind of evidence be enough to show that the mens rea that you identify as the mens rea that you think is the requisite one would have been met? [00:08:41] Speaker 05: Well, it depends on the nature of the testimony that everybody in the area knew. [00:08:45] Speaker 05: I mean, if there's any sort of direct evidence of that, then I would agree. [00:08:51] Speaker 05: One sort of evidence might be if the village was awash in dollars, for example. [00:08:59] Speaker 05: Perhaps that would be an argument that, look, you must have known that the United States was involved here. [00:09:04] Speaker 05: But there isn't any of that evidence. [00:09:07] Speaker 05: And I don't think that you can just sort of sit there and assume that every little villager [00:09:12] Speaker 05: a young man growing up in a village on the river would have known something that was known by the higher-ups in the FARC. [00:09:20] Speaker 05: Because remember, going back to Colonel Alvarez Ochoa's testimony, the FARC made it a point not to advertise its drug trafficking. [00:09:32] Speaker 00: OK. [00:09:33] Speaker 00: Make sure my colleagues don't have additional questions for you. [00:09:36] Speaker 00: Mr. Gilbert, we'll give you some time for rebuttal. [00:09:39] Speaker 00: Thank you. [00:09:40] Speaker 00: Thank you, Mr. Gilbert. [00:09:40] Speaker 00: Mr. Richmond? [00:09:42] Speaker 04: Good morning. [00:09:44] Speaker 04: May I please the court? [00:09:45] Speaker 04: My name is Jason Richmond. [00:09:47] Speaker 04: I'm an Assistant United States Attorney in the Southern District of New York. [00:09:51] Speaker 04: I'm a Special Assistant United States Attorney for purposes of this case in the District of Columbia. [00:09:56] Speaker 04: I did not represent the government at the trial, the original sentencing, or the original appeal below, but I did represent the government at the resentencing in this matter and on appeal. [00:10:09] Speaker 04: When this court first sent this case, remanded this case back to Judge Hogan, it remanded it with an instruction that Judge Hogan had not made the requisite findings as to the second and third elements of the aggravating role enhancement under guideline 3B1.1. [00:10:27] Speaker 04: On remand, Judge Hogan did exactly that. [00:10:32] Speaker 04: First, the appellant abandoned his challenge to the third element, that the criminal enterprise was otherwise extensive, and Judge Hogan noted that in ruling on remand. [00:10:42] Speaker 04: And as to the second prong, that there was a participant supervised by the appellant with the requisite benzeriah, Judge Hogan repeatedly, over the course of at least two proceedings, referenced that standard. [00:10:55] Speaker 04: He reviewed the evidence from a trial that he presided over a multi week trial he presided over that established just that fact. [00:11:03] Speaker 04: And then he came to a conclusion that was supported by those facts, and by the law in determining that at least one such participant existed. [00:11:12] Speaker 04: That evidence came from, among others, the four cooperating witnesses who testified specifically about their interactions with Mr. Martinez Vega. [00:11:23] Speaker 04: Three of those witnesses, Mr. Restrepo, Mr. Parrig Diaz, and Ms. [00:11:29] Speaker 04: Ortiz, all testified specifically both about their own knowledge that cocaine was destined for the United States [00:11:37] Speaker 04: and about specific acts that the appellant had told them to do. [00:11:41] Speaker 04: The fourth cooperating witness, Mr. Bolas, testified more broadly, I would say, about his history with the defendant, with the appellant, and about his own knowledge, again, that cocaine distributed by the FARC was destined for the United States. [00:11:56] Speaker 04: Judge Hogan also reviewed expert testimony concerning the fact that most of the cocaine consumed came from Colombia, which, again, could lead to a reasonable inference that [00:12:06] Speaker 02: uh most of the individuals involved what is what is the evidence of this court you think that this court was relying on to show that the defendant supervised the cooperating witnesses i'm missing it [00:12:18] Speaker 04: Of course, Your Honor. [00:12:19] Speaker 04: So I could cite to a few different places, Judge. [00:12:21] Speaker 04: So first, Your Honor, I think sort of the, maybe the neatest place to refer would be to the, this court's first opinion in this matter. [00:12:29] Speaker 04: And in that opinion, Your Honor, there was reference to testimony of Mr. Power Diaz, who had suggested that the defendant may have had a troop, that the defendant had guards, and that there were many people supervised. [00:12:42] Speaker 04: Ms. [00:12:42] Speaker 04: Ortiz testified that the defendant was the [00:12:46] Speaker 04: leader or in charge of the group. [00:12:49] Speaker 04: Mr Restrepo testified explicitly that the defendant was quote, like our commander are immediately immediate. [00:12:56] Speaker 02: What about with respect to drugs going to the United States? [00:12:59] Speaker 04: Yeah, absolutely, Your Honor. [00:13:00] Speaker 04: So I could go one by one for each of those witnesses. [00:13:03] Speaker 04: For Mr Paradias, Your Honor, this is at the supplemental appendix page 169. [00:13:09] Speaker 04: He testified that he was told that cocaine quote was sent over to the Americans. [00:13:16] Speaker 04: Mr. Restrepo your honor testified this is at appendix pages 256 and 257 that more than one leader of the FARC had told him that cocaine was bound for the United States and that that happened repeatedly in conversations he had. [00:13:35] Speaker 04: Ms. [00:13:35] Speaker 04: Ortiz your honor at appendix pages 196 and 197 testified about seeing US dollars when she was with the FARC. [00:13:44] Speaker 04: In addition, Your Honor, we cite at our brief, at page 18, footnote four, other testimony, and it was not as focused on this appellant at trial, but other cooperating witnesses who testified. [00:13:59] Speaker 04: One was Alexis Perez, who testified that it was, quote, normal to hear [00:14:04] Speaker 04: The comments that the cocaine was coming to the United States, because it said that that is the country that most consumes it specifically press said that she heard a former FARC leader say that the cocaine was quote all coming to the United States. [00:14:20] Speaker 04: Mr. Bolas, your honor, who was another cooperating witness, who testified that he discussed U.S. [00:14:27] Speaker 04: currency with the appellant specifically, that he paid him in U.S. [00:14:31] Speaker 04: dollars. [00:14:32] Speaker 04: And that's at, sorry, Judge, that's at supplemental appendix pages 266 to 292. [00:14:38] Speaker 04: So the record is replete with references to the destination of the cocaine being the United States. [00:14:46] Speaker 04: both from these witnesses, and I think, importantly, sort of inferentially, Your Honor, to other people involved, getting at Judge Rao's question. [00:14:54] Speaker 04: I think the idea that all of these people were around, all these people were supervised, and I think the appellant now admits that he did supervise people, but there's a fair inference. [00:15:05] Speaker 04: It certainly was not clear error for Judge Hobin to rely on the circumstantial evidence of knowledge of some of those other folks. [00:15:12] Speaker 00: Do the government and the defense agree in the district court that the mens rea, the requisite mens rea element concerned knowledge of the drugs destination being the United States? [00:15:23] Speaker 04: Thank you, your honor. [00:15:25] Speaker 04: We do agree for purposes of this proceeding that we have met that burden. [00:15:30] Speaker 04: I will say the appellant said- That is the burden. [00:15:33] Speaker 04: I do agree that that is the burden, your honor. [00:15:34] Speaker 04: Yes, that there is a world in which, your honor, we could have proven that the participants had [00:15:41] Speaker 04: participated in material support of the FARC or a firearms offense, perhaps, that was related to this conduct. [00:15:48] Speaker 04: That is not the case in this case. [00:15:50] Speaker 04: We haven't made that argument. [00:15:51] Speaker 04: I'm not making that argument today. [00:15:53] Speaker 04: As Mr. Gilbert referenced at one of the proceedings, and I believe it was the August 2020 hearing and not the actual resentencing, he did make explicit to Judge Hogan that if Judge Hogan disagreed with his read of the mens rea that he [00:16:09] Speaker 04: asked Judge Hogan to issue a written order to that effect. [00:16:12] Speaker 04: That obviously did not happen. [00:16:14] Speaker 04: And the government has not argued anything to the contrary, and we don't today. [00:16:19] Speaker 04: And Judge Hogan repeatedly, Your Honor, at both proceedings, referenced that he needed to find someone had the necessary mens rea. [00:16:27] Speaker 04: He references crimes that affected the United States. [00:16:30] Speaker 04: He referenced what he needed to find to define participants. [00:16:34] Speaker 00: So the question I have is on the last point you made, which is where the district court joined issue with where it sounds like the parties were to the effect that the relevant mens rea question is whether there was knowledge among the participants that the destination of the drugs was the United States. [00:16:51] Speaker 00: It seems like everybody sort of had that in mind and there were references to that effect, but where's the best place to look to note that the district court had that understanding as well? [00:17:02] Speaker 04: Sure. [00:17:02] Speaker 04: I think one place to look would be at appendix at page 338, Judge. [00:17:07] Speaker 04: And Judge Hogan, at that reference, he said, without going through the rest of the individuals, there are many others. [00:17:13] Speaker 04: Just asking about one other as to the issue of whether you can import their knowledge of whatever offense they were committing would affect the United States. [00:17:21] Speaker 04: And again, Your Honor, Mr. Gilbert below, and I don't have that site in front of me, but did say, outlined what he [00:17:30] Speaker 04: argued was the requisite mens rea and did say to the district court, if you disagree, we do request that you put that explicitly. [00:17:36] Speaker 04: And during the course in context of Judge Hogan's evaluation of what a participant was, what the necessary mens rea was, he does reference implicitly and otherwise sort of the need to find the facts we're talking about. [00:17:56] Speaker 04: And I think absent other questions from the court, the government would rest on its submission. [00:18:02] Speaker 00: sure my colleagues don't have additional questions for you, Mr. Richmond. [00:18:05] Speaker 02: Tell me again where you think the reference you just gave wasn't ringing true to me. [00:18:13] Speaker 02: Where do you think the best evidence is that connects the district court's understanding of the mens rea test and the district court saying pursuant to that understanding, I am finding that [00:18:29] Speaker 02: this or these participants or these cooperating witnesses were supervised by the defendant and they all understood where the drugs were going with respect to that supervision. [00:18:44] Speaker 02: Where is that? [00:18:45] Speaker 02: I mean, your answer was a little bit elusive and I'm not really understanding. [00:18:50] Speaker 02: Where did the district see if a district court has a very clear understanding, there's a fight over mens aria and I gotta have a finding to protect the record. [00:18:57] Speaker 02: District court judges normally know how to do that quite well. [00:19:01] Speaker 02: Where is that that pithy finding that says, oh, here's the finding you want. [00:19:06] Speaker 02: I can't find it. [00:19:08] Speaker 02: Thank you, Judge. [00:19:09] Speaker 04: So I think it's in a couple of places sort of pieced together from the record. [00:19:13] Speaker 02: One is that wait, is there a place where you don't have to piece things together where there's just this pithy finding and the district court says, [00:19:20] Speaker 02: You don't want to protect my record. [00:19:21] Speaker 02: Here's the finding. [00:19:23] Speaker 04: Your Honor, at Appendix 352, Judge, the district court says finding that the government has met its burden. [00:19:31] Speaker 02: No, that's the conclusion. [00:19:34] Speaker 02: If there is something, just so you know what I'd like to see if there is such a thing, where the district court is not stating a conclusion that they met their burden, the district court is saying, [00:19:46] Speaker 02: I know what the burden is. [00:19:48] Speaker 02: Here's how they met it. [00:19:49] Speaker 02: Here is the evidence I'm relying on to make the finding I make. [00:19:55] Speaker 04: Okay, Your Honor, where the district court says this is what I have to find, I think one example would be at appendix 349, where Judge Hogan said I have to find a participant, a person who is criminally responsible for the commission of the offense, but need not have been convicted. [00:20:14] Speaker 04: That means the person must have committed all the elements of the statutory crime with the requisite mens rea. [00:20:21] Speaker 02: Then the district court- But you got to connect that to supervision. [00:20:25] Speaker 02: Correct, Your Honor. [00:20:26] Speaker 02: And I think- Not just, yeah, there definitely were participants. [00:20:30] Speaker 02: Right. [00:20:31] Speaker 02: You've got to connect all of them. [00:20:32] Speaker 02: You keep jumping around. [00:20:34] Speaker 02: I'm not being accusatory. [00:20:35] Speaker 02: I'm just trying to understand what your answer is. [00:20:38] Speaker 02: You've got to connect all these pieces, at least to help me understand, where is it? [00:20:44] Speaker 02: I mean, I'm thinking of myself being a district court judge. [00:20:47] Speaker 02: I know what I was going to find here. [00:20:48] Speaker 02: And I'm going to say, no, here are the participants I have in mind, whether it's a general group or whether it's individuals. [00:20:54] Speaker 02: Those people clearly were supervised by this guy. [00:20:58] Speaker 02: Here's what I'm relying on. [00:20:59] Speaker 02: And they clearly had reason to know these were drugs going to the USA. [00:21:03] Speaker 02: Where is that finding? [00:21:04] Speaker 04: So, and apologies if I misunderstood your question, I'm hearing maybe two parts of question your honor so the first one in terms of when he more explicitly outlined what he had to find I think part of it's what I just quoted right before that at page 348 of the appendix. [00:21:20] Speaker 04: He says what the circuit held I had to find was that Mr Vega under the guidelines. [00:21:25] Speaker 04: managed or supervised at least one participant who was criminally responsible for the offense in a criminal activity involving five or more participants. [00:21:34] Speaker 04: In terms of him connecting that question, which I think is the second part or the subsidiary part of your question, in the appendix at 352, 353, 354, Judge Hogan goes through testimony from the cooperating witnesses themselves about some of the important things in terms of their supervision. [00:21:53] Speaker 04: I don't think, Your Honor, I can't point to a line where Judge Hogan says these are the individuals who were supervised, but it is clear in context he's referring both to some of the cooperating witnesses and also to some of the other individuals who he did supervise who inferentially had this knowledge. [00:22:10] Speaker 00: So the knowledge question, it seems like everybody's joined issue on this. [00:22:15] Speaker 00: The knowledge question is whether there was the requisite knowledge among the participants that the drugs were headed to the United States. [00:22:21] Speaker 04: among a supervised participant? [00:22:22] Speaker 04: Yes, sir. [00:22:23] Speaker 00: Well, among the participant, yeah. [00:22:24] Speaker 00: And I'm assuming a participant is a supervised participant. [00:22:26] Speaker 00: So that's the necessary question. [00:22:29] Speaker 00: Now, a court can't predict every question that could potentially come up. [00:22:34] Speaker 00: So you're not always going to itemize everything exactly right, because you don't know what the inquiry is going to be later on. [00:22:38] Speaker 00: But ideally, what you see in the record is something that says, I need to find the requisite mens veria for the participants. [00:22:47] Speaker 00: the mens rea standard, the mens rea question in this case is whether there was knowledge that the drugs were headed to the United States. [00:22:54] Speaker 00: Here's the evidence that leads me to conclude that the requisite knowledge was there. [00:22:58] Speaker 00: And then there'd be, you know, one, two, three pieces of evidence that support the knowledge on the part of the supervised participants, the drugs were headed to the United States. [00:23:07] Speaker 00: I don't think that's in here. [00:23:08] Speaker 00: That's not necessarily to say that the government can't win, but I don't think that kind of itemized [00:23:14] Speaker 00: pointed analysis and determination is in here. [00:23:19] Speaker 00: All right. [00:23:19] Speaker 00: I mean, that seems to be the nature of the inquiry. [00:23:21] Speaker 00: And it's not to say that you can't piece it together. [00:23:24] Speaker 00: It's just to say that it's not as easy to find how it was met. [00:23:28] Speaker 00: Now, the one question I have is how it was articulated and then met. [00:23:32] Speaker 00: On 351 [00:23:38] Speaker 00: 352 to 353 at starting at line 15 of 352. [00:23:44] Speaker 00: The district court says and this is where you started with what I think my colleague rightly said as a conclusion that all the evidence of trial and finding [00:23:54] Speaker 00: and considering all the evidence at trial and finding the government has met its burden. [00:23:57] Speaker 00: And it's more likely than not that one of the individuals managed and supervised was a participant as required under the guidelines. [00:24:04] Speaker 00: And I'll summarize the evidence briefly that leads me to that conclusion. [00:24:07] Speaker 00: And so that's a correct statement of the conclusion. [00:24:09] Speaker 00: And then the district court summarizes the evidence. [00:24:11] Speaker 00: And the first piece of evidence is that the expert testified that 90% of the cocaine consumed in the United States came from Columbia. [00:24:20] Speaker 00: Is that a place where you draw the tie that says that [00:24:24] Speaker 00: Here's the standard, I've got to find a participant which requires mens rea. [00:24:28] Speaker 00: And the first piece of evidence is that 90% of the drugs consumed in the United States come from Columbia. [00:24:35] Speaker 04: Exactly runner and those were the pages 352 353 354 that that more specifically is what that was. [00:24:40] Speaker 00: But then the rest of the the rest of the items on 352 to 354 don't necessarily pertain to whether the drugs were headed to the United States, they do pertain to whether. [00:24:53] Speaker 00: Mr Martinez Vega supervised individuals and there were individuals in his domain. [00:24:58] Speaker 00: who appeared to be individuals who he was working with and who he was overseeing, but I didn't see anywhere else that talks about the drugs being headed to the United States. [00:25:09] Speaker 04: Agreed, Your Honor, and that point well taken. [00:25:10] Speaker 04: I think Judge Hogan did a good job of repeatedly referencing the totality of the evidence and that he wasn't reviewing everything that was before him and the government in its submissions did emphasize some of that evidence. [00:25:22] Speaker 00: Some of the evidence that the drugs were, of knowledge that the drugs were headed to the United States? [00:25:26] Speaker 04: Exactly, Judge, yes. [00:25:30] Speaker 00: Okay, make sure my colleagues don't have additional questions for you. [00:25:34] Speaker 00: Thank you, Mr Richmond. [00:25:35] Speaker 00: Mr Gilbert will give you two minutes for your bottle. [00:25:39] Speaker 00: Thank you, Your Honor. [00:25:40] Speaker 05: Um, I do think falling up with Judge Edwards question. [00:25:45] Speaker 05: I do think it's important to recognize the distinction between the categories of people we're talking about. [00:25:52] Speaker 05: Many of the, or several of the Ria and Sertano witnesses who were themselves involved in drug trafficking stated that they knew that the drugs were going to the United States. [00:26:06] Speaker 05: But the issue with respect to those individuals is can Mr. Martinez Vega be fairly said to be supervising them? [00:26:15] Speaker 05: And that's why the second issue that I pointed out to you, whether you are going to adopt essentially the definition of control in the Salinas case is important because that actually requires the supervisor to tell [00:26:29] Speaker 05: the participant what to do, when to do it, and where to do it. [00:26:34] Speaker 05: One brief example, if I may, there is a place where Para Diaz talks about having received the written order from Negro Ocasio, the head of the 16th Front, to go and meet Martinez Vega and obtain this war material from him. [00:26:50] Speaker 05: Well, that's a perfect example of Negro Casio telling Paradez what to do, when to do and where to do it. [00:26:57] Speaker 05: Presumably there were some complimentary orders to Martinez Vega to get him to that same spot at the same time. [00:27:04] Speaker 05: But that doesn't mean that Martinez Vega was therefore supervising Paradez. [00:27:12] Speaker 02: Well, the one place you do seem to have a problem in terms of the side of the case you're arguing is with [00:27:21] Speaker 02: respect. [00:27:22] Speaker 02: How do you pronounce his name? [00:27:23] Speaker 05: Restrepo, Your Honor? [00:27:24] Speaker 02: Absolutely. [00:27:26] Speaker 02: Look out and his connections with the defendant. [00:27:30] Speaker 02: And it was clearly, it seemed fairly clear to me he was being supervised by the defendant. [00:27:36] Speaker 02: And he, the evidence suggested that he had, he had reason to know the cocaine was going to the United States. [00:27:46] Speaker 05: I don't know what evidence that would be during the time that he was allegedly supervised by Mr Martinez Vega. [00:27:53] Speaker 05: He was a 14 year old out working on farms to keep an eye out on anything in Bechata that would harm the FARC's interest. [00:28:02] Speaker 05: But I don't think he doesn't get involved in the drug trafficking until much later after he becomes an armed member of the FARC. [00:28:10] Speaker 05: So my argument there is that the mens rea has to coincide with the supervision. [00:28:18] Speaker 05: And with Restrepo, I don't think they can do that. [00:28:21] Speaker 05: I don't think they can show that Restrepo had any knowledge at the time he was a miliciano about where the drugs were going. [00:28:28] Speaker 05: That was above his pay grade, frankly. [00:28:37] Speaker 05: So I don't have any further comments unless the court has any further questions. [00:28:43] Speaker ?: Okay. [00:28:43] Speaker 00: Thank you, counsel. [00:28:45] Speaker 00: Thank you to both counsel. [00:28:46] Speaker 00: Mr. Gilbert, you are appointed by the court to assist to represent appellant in this matter and the court thanks you for your assistance. [00:28:53] Speaker 00: You're welcome, Your Honor. [00:28:54] Speaker 00: It's been a privilege. [00:28:56] Speaker 00: We'll take this case under submission.