six month period in the government had plenty of access to alexander's phone records and so forth and they produced no evidence of any other activity by handle firearms and so we have a statute that sets forth the requirement of proving a regular course of trade or business as i say i just don't think i just don't think that has been so i i want to ask you a question about that so in your view is there a minimum number of transactions during a minimum time period that would establish a regular course or do you  cases aren't particularly helpful and say well six transactions in four months would be fine or is not enough on so how do we how do we how do we figure out what the dividing line here's well i'm not sure transactions at plies guns and that other people brought to him but there's no indication that other than in those four transactions he had anything to do with with selling firearms so  regular course of the i think we all have a feeling for what that would mean to be engaged in a regular course them trade or business this just doesn't constitute that so he has two transactions in late december and then he takes one or a month saw him four to five months off and then he has a transaction in april and the transaction in may and that's the end of it but why is that not just a jury question it sounds like a factual speculate about i don't d see how there was evidence that it's not that they could speculate there was evidence of front of them of these transactions there was evidence in front of them that at least some of the transactions were joint so i guess my question is given that why couldn't a jury combine those and say the regular course of business was the two these two guys together selling fire again i think that would be speculation  is no indication of any type of business and we don't find we don't find mr alexander originating any of the transactions all of the government's evidence involves other people to lay him in and then bullying him into it and then they do others completely without him and i guess here i was asking why can the jury can conclude that because he participated in for  and not in the other four or how ever many it was the jury could conclude well he probably was somewhere in the background of the of the others but by the gods that security speculate on what might have been done behind the scenes the government's refusal to disclose the identity the true identity of the ormonde in this case and i would like to concentrate on the evidence that was suppressed and i want to emphasize that when we're talking about is the pression of evidence we're not talking about jacking up you're talking about information and we're talking about evidence that was in possession of the government and what was the evidence  that was from us and that would have made a difference the first was start when the informant story his story was that he moved into this mona park neighborhood because it was the only place that he could find completely ridiculous lee false story and i also want to emphasize that the informant testified then how when he moved into this neighborhood because he found it on craigslist the handler detective shere said well are you crazy when meaning like it's a dangerous neighborhood and and so on but the informant as it turns out he was a regular this was his old stomping ground he grew up in the area and then within a five minute of one pretrial they could have been turned over by the government the government certainly could have turned this information over and i'll tell you why attempted shere who was the l a p d officer that was involved same issue judge today asked you about you said at the outset there was that there were documents in possession of the government that contained this suppressed information if you information not turned over before you do i think with one of the problems with the with appellate judges is we're pretty good on the law but not very good on the facts since you guys tried the cases and we're just looking at the records so tell me what documents whether in had a responsibility a duty to get all the transcripts of produced and all of the record for the state case where the informant test which they could have done but they did transcripts didn't exist at the time the trial counsel found out that there was a state proceeding in which the informant had testified correct when they did not exist i got them all produced well yes what happened was mr rayn government has a duty create documents under brady is not only the government does not have a duty to create documents but the government has a duty investigate the credibility of their for a look at this buoy versus and the government did turn that letter over but when judge track and phatic where he condemned the government for not investigating whether or not that was true and reverse that any responsible prosecutor has a long sentence to investigate the credibility of the enform we're talking about a criminal informant who work with these agents case did not result in a conviction and in fact when there was a hung jury a state judge decided to grant the motion to dismiss on the grounds of a lack of credibility because they wouldn't and nd jury was i going to government failed to disclose a time of information about the defendant mr rayner and mr buehler who was one of the trial houses could not conduct the kind of investigation and the united states supreme court says the defense attorney must do in order to make strategic sound strategic decisions about how to best advocate on behalf of the climb so going into every case they did that now the truth about this not no it was not arms and the reason it's not harmless is because there was no evidence in the record that mr hill understood what the word amends the word found is not anywhere in the statute  says that he was advised of the maximum penalty for the crime and it seems to me the government argues that i don't see a good argument as a contrary that at the time that the crime was committed the maximum punishment was more than a year now it doesn't say he told him it was more than a year but isn't that enough evidence that you're from what you're jury could conclude that he knew that the punishment was more than a year  years or four years so so clearly the maximum he was over twelve months i'm not i that disagreeing with you that the maximum penalty was more than that we're talking about what mr hill knew and understood occasions that he knew he was not supposed to have guns i'm sorry he's using that again i thought he knew i thought he said at least once if not twice that he knew he told officers he was where he was not supposed to have guns when you it's not here anywhere so that how does the government how does the government make its case in a case like this where the defendant doesn't take the stand the word you can ask the defend t what do you understand the word felon to mean he's used it and said i'm a felon i can't possess firearms i understand that but how does the government prove his understanding other than through his own  well you know the government perhaps what the government could have done and i'm just speculating here because i'm not saying i wouldn't challenge you later on ok but what the government should have done if they get the transcript of the advice going to the guilty plea if they get the objection was made below to the instructions at least as the instructions were of your for clear or yes i agree i agree i did say that i can see that that is plain or that because that was objects to the instructions but there were certainly was an i can stand corrected but i don't recall that the judge constructed the jury on that specific point and i think you know that's why we have a game changer and that's why you know this u s supreme court takes about informants seen advertising additional guns and made clear that he was selling to other people because sometimes he'd say i have four guns for sale now they're gone no longer available he made clear that you had different suppliers for guns you want to bo four transactions the jury was asked to decide whether the conduct over the period of time that was charged all within the spectrum of what the law considers regular or is a vis a vis and here the evidence did show that the defendant ikeda knew about the price is a big guns they themselves that's a price and they negotiated with the informants about price sincere in their they were worried about making their customer ways and what we're really talking about is neighborhood when that wasn't true then you go ahead to suggest those points yes absolutely and on that point i would like to start with the point that i agree with defense on which is that the government has a duty to look for d let me ask one question if you were done and not none of the information on friday well miss we folks says what i didn't know or what trial counsel didn't know is that this informant had just testified in a state court proceeding and we didn't know what he said in that state court proceeding because we didn't know his name and so going to find out his name but focus on that when was the state court proceeding disclosed what was this assume that's affecting them for a moment in this case would you have an obligation to disclose that not just that he did something i'm truthful but that he said something there w it depends on whether the government knew that information and i think one of the very important facts here is that ben concedes that the transcripts were not even created until she requested them for purposes of the deal and so there's no indication here that the moon and i do agree that the government has an obligation to ask them questions and as a discovery letters are made clear when the government made a disclosure about that they weren't paid it was based on their view of the alley you file but also based on conversations period of twelve years and learned relevant information that it how did you need to learn and disclose that information and to do that that there was nothing here that we withheld and after a year now that the defense ha the defense are counseling continues to misrepresent what happened in the states or cities and frankly we have those transcripts the court to read what the state court found that there in this case was not dependent on just t i testimony the identity the defendant in that case was identified by the brady law enforcement officers as well as yet the informant and doesn't say that the case was thrown out because of credibility issues and the informant is just good other question about this topic because i'm not sure i understand if in the record the state court case was dismissed at some point and it was before this trial began correct correct was that fact disclosed to the prior criminal history and how much money he was paying for all the work he did the fact that he got immigration benefits all of those tests and things were going flows well in advance of trial the defendant had all the unknowables and didn't the the judge ordered the government disclose the name of the informant seven days before trial if the government was going to use the informant but the government did do not do that right they did not go so the things that were right there was not seven days because seven procedural sort of odd result that that happened was there any objections to this sort of i don't want to call it a violation of the seven days rule but the fact that it didn't end the patterning there was no request for continuance in terms was punishable by sixteen months or two or three years so clearly over a one year deal he also gymboree that he also received a suspended sentence and you know what was the life of the suspended sentences i do not any of my colleagues have questions if not why don't we put a couple minutes on the clock for the appellants and you can split them or use them as you see fit  and the government has to print that information over and the government does not do that if the government doesn't want immigrants because the government didn't tell you the identity or confirm the identity four days before trial so it's a little bit different  never learned it now it's not oh there's no more going to mean that at all because st of all it was three business days before trial and they only confirmed it because mr raynor finally after  government and all of this might have been avoided if the government had disclosed the true identity of the informant when they were requested which rove arielle of the wires and it is then going back to the issue regarding the