from the record because the progress made it clear that it was reasonable to think that the jury might believe eric mendoza and that's where they left it equated to a couple facts that might support what people who lie cheat and steal every day they do that for a living however in this case eric mendoza not only had that history of lying he had a motivational i've based upon his motivation to get out of the charges he's facing for criminal smuggling and for the civil lawsuit for six million you talking about and when you look at that kind of fact pattern what's reasonable ask if that point for a prosecutor who's going to bring these types of charges against federal law enforcement officers and i think the problems basic question to ask would be to federal law enforcement officers for violation of civil rights based upon the word of some of my guests well more council there are going to be an excessive force case whether it's in local police or federal agents or grave it's going to be the people who are being attacked aren't necessarily going to be very nice people so if you just going to go up on the fact that this guy's a liar i don't idea that because these guys are vet guy in jail i think it was very clear we can't just laugh i'm not taking anything away from the fact that the officers were just because why didn't even curtain sinking to the ground cerner will toss your big chance talks about that we don't want to do that in these situations we need to give these officers discretion and that didn't happen here this is a difficult case trying to stand that we have a heavy burden but we've also got a lot to think about here cops need to have faith that they can go out there and do their job that when they buy a house they get married and support kids that they want to put through college that it's not all going to go down the tubes because someone makes an allegation it's not corroborated not supported b the court christopher to order for the united states europe this was a good faith prosecution of an immigration detainee that was choked with two cans and the district court found that there was in fact sufficient evidence to send this to the to the to the jury now contrary to assertions otherwise the courts specifically held that those allegations were corroborated by the medical report by the photographs and by the video know we're not here to retry the case however there are some points there are some distortions of the facts in the record that must be addressed a lot of those things that were brought up for the first time in the reply brief the person being that there that was their argument at at trial and it was a question of fact they allege that the the hands to the neck were pushing in the an example now questioning dr hahn on the stand he first just a question of fact now the other items that were mentioned were that there were medical documents that were not turned over to the day before that is incorrect there were the medical documents were turned over immediately in the first group of discovery as to what dr han had found and had discovered about mr mendoza what was turned over later were notes that were taken and an interview of mr han in preparation for trial that statements contradict each other one of the statements that they referred to was not a statement but rather a letter from the mexican consulate passing along what they said their interpretation of what mr mendoza's allegations were what the government was going off of was the immediate statement made by mr mendoza immediately after leaving the cell and reported there's a second statement that they might have to take that that shows they were minor inconsistencies but certainly nothing that contradicted the fact that his allegation was that he did not provoke any use of force and certainly not the excessive use of force that you live now the definition of frivolous of course the court is where that said it's one of the three prongs that are the hyde amendment now the difficulty that we've had i believe is showing what all is needed to prove frivolous now the court is it of course have to prove that the government acted that there was binding precedent that should have prevented them from acting or that it was so obvious really wrong to be frivolous and that a second prong i believe is was is the only one here now the problem is that what is meant by so obviously wrong the court has said previously that means without foundation but also something more and that something more we can find is record as to what was pleader based on the video and other evidence and what were the questions for the jury now we respectfully disagree that the standard that was applied to the to the government and trial was that we had to prove innocence is not initiating now of course the information that was received after the trial regarding the memorandum that were sent that were written contemporaneously do not go to the issue as to whether and show that there there must be some type of malice or something that must be proven and now this has not been addressed specifically on the furthest prong because there's been a kind of indication that there's only objective standard but what we contend is that there must be some kind of showing a prosecutorial misconduct in the manchester ruling this court said that it had to be outlandish misconduct that it often to embarrass or annoy the defendants or still obvious that it's fruitless which would in few the knowledge that it is wrong to the government and then i think would act anyway that is what was alleged in the bronston case which they found there are certain areas that can't be touched in just one of those include the nec and the specific words were i don't recall training in which you could go to the next now he clarity even underlining or or run w however what they're arguing is that we should have put exculpatory evidence into the grand jury which of course was for those is not necessary likewise the use of force discovery was not an issue  in the district court as to whether that was a discovery violation it was debatable even at that point whether it was discoverable it was received two weeks prior to trial the reason that they brought it up on appeal is to it was prejudicial not to have it before the grand jury in other words they argue that it could have been a scope of jury again not necessary and finally the medical documents they argued were also  becomes the bearer and maybe a fictional hypothetical laddish hypothetical but you know dividing responsibility and saying look this prosecutor picked  i'm thinking what he or she has been told the facts but everybody else knows there will be prosecutors will like to get that prosecutors acted in good faith and it wasn't otherwise obvious that it would not be the frivolous abuse and that was taken out so in order to make up for that missing language they showed ok well now the burden is on the appellant and there might be special circumstances despite the fact so i think it might fall under that circumstance presented and it's a spike the fact that the parents have benefited from the unavailable and contradictory reports that the government did not have a trial they were able to testify after i just want to make clear the that this report specifically found that the injuries were in the area that made his account somewhat credible so he did the district court did make specific findings as to the defendant often not always grounds well that would mean that there's absolutely no evidence there we know that if someone makes an assertion or an allegation well that can be direct testimony in court so that would be some evidence which means that any time anyone can speak or make an allegation then the groundless elements could therefore theoretically be satisfied and we're not satisfied actually in the senate can never recover and that's obviously not the situation i don't think that's what senator hyde wanted nor happened i completely disagree with that the medical records were turned over until a day before trial and i'm relying on the declaration of the pence counsel from trial the use of force policy supplied to the defense fourteen days before trial i understand were buried in about eight hundred pages it's saying a lot for the law enforcement officers that protect us every day and it will save us a great jury argument and you've already made  there was a lot more that went on this case that show that this case was groundless it had very little prospect of success and i think eric and those who got a trial all the concerns that the prosecution could have had if they had bothered to look at this case proved true he admitted to lying to the jury