they please the court my name is greg smith the appointed counsel for stephen basin and i'm here to ask you to reverse the man but i also ask you that today for decision as soon as possible and before this court issues any written opinion because mr mason is currently incarcerated only on a mandatory minimum sentence so if you are inclined to reverse on any of work and grounds please do issue of decisions promptly without waiting for an opinion to mr mason can again get released on bail during attorney and as he was before the the three grounds here are strong brady violation mr winter and failure to sever and misapplication of the safety valve all three including materiality on brady which really equates to the prejudice question all three of your issues this for over six months really nine months especially when it's not even in the hands of law enforcement officers but the prosecutors themselves who were using the same information for their own purposes how you have to show that  we've been told on if you've been told on march th the walker had gotten a letter from one of his co defendants saying i played a lie against the others at trial if you're the defense lawyer what would you have not you would have immediately called up walker and asked for the letter there's no reason to think that walker's attorney would have refused the letter because he wasn't cooperate here so if you meet with walker and if you meet with walker himself you show him the letter you get a sworn affidavit from walker before he starts cooperating and even if walker's attorney did refuse his attorney which early at least to call the government so the government likely would have talked to walker's lawyer would have found out about jazz long before june st walker or any attorney for evidence and all they had a trial for impeachment was isn't it true you told the truth but late to the government agents who were interviewing you that is a far cry from isn't it true that you said you were going to lie under your co defendants we could have gotten if it had been timely disclosed you could have had a sworn interview with walker and showing him this getting him to acknowledge that casket holder who couldn't have done that anyway they had they had the documents but it was it was the later on or they did get one chance one chance to rebuild laurie to talk with walker they chose not to use trial they tried to call walker well yes but but only because of the the way it was was structure they'd have spoken walker in december without the letter they didn't know the letter existed if it and that alone was prejudice of they've been able to show the document to walker here's what's going to happen walker either would have admitted it and then they could have had evidence that walker admitted it we what would happen they would have shown him and confronted him with the letter during their one interview there was this was good lawyering below by the defense they actually got a chance to talk to walker in december before he clammed up took the th wouldn't go in trial and wouldn't say yes this is going great there's this letter i knew it they had one chance to talk to walker but they didn't have the letter they didn't know about the letter and when they finally did get the letter walker had changed his mind they missed their chance to be able to to to say that so what would have been lots of different things would have happened he would have had a chance to talk fine job jass talk to jazz good jazz uncle to corroborate what he said and they could have called walker or if walker wouldn't testify that at least you could have brought your investigator to take the stand this it if it chose denied it have your investigators that well i talked with walker and walker said that he did in fact write that plus he would have had lots more he wants to make related to the the hearsay exception related to who could testify to walker possibly jazz possibly jazz uncle possibly an investigator defense investigator the talk to any of those people potentially could have given john's wrote that letter and we know that the letter was subjected to handwriting analysis which came back to finish the johnston not write the letter well it was the government's reason to think that any of that would impact the assessment of the handwriting expert not of the hit writing expert but the defense instead of the defense being stupid scared to raise this because they had writing expert if they had evidence that they could have been able to get through other witnesses saying yes we heard jones wrote this it would have been at least a fair fight the way it was it played out the government had had skewed it to where all they had it lined up the way they wanted where jones was denying it and despite the polygraph was missing and that would have changed the trial this was a purely reasonable doubt case in a all depended on judges credibility so anyway because i didn't look at it justice credibility was potentially going to affect this trial so let's pursue that ok soon jones is not a credible witness you still have all of the wire taps which show which show mason conspiring with john but but not the mandatory minimum if your honor and that's the key piece the jury decided that merely tory minimums and without jones's testimony they don't get a mandatory minimum conviction they go out on that's i'm sorry that's one hundred grams is yes ye are not dying declaration i mean well they could have also used attempting to use the residual hearsay exception for english of reliability and that opportunity was deprived they were deprived of that opportunity to present to to that opportunity was there not but the bigger question is i just i mean look they have on to a document that was just kryptonite for six months and i don't know how this court you know it seems like the prejudice prong you know you look you have supervisory powers it seems like the prejudiced prong upgrading has been morphed into an unwritten timing rule on the other side where it's supposed to be turned over immediately but under the prejudice prong they seem to have this use it if it's turned over a month before trial it's a safe harbor you know they were they were spending weeks writing this and word smithing this ten page single space judge griffith and i are asking you is not a question of prejudice the question of when the duty to disclose arises i will provide theory is it was in march at a time when the trial had been a trial date hadn't been sat it wouldn't it wasn't going to be set until almost a year later the government still figuring out who were going to be there witnesses who sco operating who's not you know in any case that says they have to turn over evidence on that at a stage like that on the theory that some unforeseeable of that might a witness might die the document might be destroyed or something like that well let me supplement of the court i think what i would like to do is to move on to the severance issue which i think is maybe even stronger they  falsely said that the in their indictment to make miller and mason had conspired together that was not so they never conspired together and the fact that the governments of paul's statement in its indictment can't possibly fourteen can't be a meaningless backstop this was a highly unusual case not one involving your risks mirroring six of spillover prejudice but this was build over prejudice we had a juror who acknowledged that she was confused she admitted she believed the evidence of the of guilt presented only against miller was was evidence of guilt against mason and she continued to her that believed despite previous efforts to clarify otherwise the government tries to suggest that this view was not proven to be shared by the jury as a whole but that isn't the standard mason is constitutionally entitled to a unanimous jury one jury jervy fighting him guilty illegally or improperly is enough and that's especially true since this juror also looked to later tonight to be the point person the most confused her is that is the four person the government said below and tries to say here that it carefully segregated the evidence between the defendants but the record shows otherwise the government's representation of the record below was false they didn't surgically segregate the defendants frankly that conflated the two intentionally they affirmatively noted they're going to rest of the same day where the same age and part of the same investigation in an effort to slightly convey to the jury and suggest improperly that there was some connection between them when that lead to your confusion how did the district court react the court exceeded to the government's demands that he could then she couldn't tell the jury that their view of the evidence was wrong and instead she gave about as watered down instruction as one can imagine i believe you may get the answer your question is the evidence continues and if you don't you can come back and ask me  unless you the jury come back and tell me otherwise especially when you put it on the one juror who is admittedly confused further clarifying efforts that ensued through the government's questioning jones were also sufficient they weren't materially different than the earlier attempts that had failed when carney had asked those questions and it most only would have clarified the testimony of this one witness joins look at what the juror asked that jones be question she said ask jones why he or walker chose mason's house for the drug delivery and whether he or walker had a relationship with mason or chose that random confused her of a have heard evidence that jones and mason had a relationship and thought well after is my question there's no need to follow up and the fact that jones didn't know about mason's house doesn't mean walker didn't know about mason's house the question that she the confusion that she had was not adequately cleared up by the clear fixation and even if he did have assurance that the jerk would necessarily have asked follow up questions which you don't there's no reason to know that her jerk her verdict was not jurors specifically said i believe the evidence against defendant and a is evidence of guilt as to defendant big that's what we have here this is a highly unusual extraordinary case and the government didn't immediately clean this up after the jury asked that question in that court gave its watered down instructions it waited until later when she couldn't briefly before the the the wiretap evidence that was the most dramatic in the case and squeezing it in there to try to minimize the the correct corrective effect this wasn't a real effort to stanch the taint addressing it head on is that it was buried with the government doing the bare minimum in a case where the government also pushed the envelope in other ways and the fent no evidence for example trying to suggest my client was trying to kill its customers over the top throughout this case we see over the top brady withheld the hints about these two different as being related when they were in an effort to slightly motions for severance are particularly sensitive in conspiracy cases because of a recognized danger that guilt of one defendant may be transferred to another and is this court has also said any serious doubts in this context must be resolved in favor of the defendant those doubts persist here and have not sufficiently been eliminated retrying this case would also be easy and quick most of the evidence below was against miller not mason this would be a very quick and easy read trial and this court ought to uphold the the sanctity of the process by sending this back for the quick and easy individualized trial that mr mason deserves finally as we noted the worked within the drug trade generally and in the illegal drug trade generally not specific to this case  good morning in their case the court down minors are united states to start with judge griffith and judge katz as question this court has said that disclosure by the government must be made in such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case white why the delay from june to december what possible reason was there for the government to hold on to that if your friend before trial was sufficient time for the defense to use impeachment information and they had witness security concerns about disclosing the letter because it's disclosure they said would only make sense in context if they revealed that jones and walker were cooperated with the government and so at that point in june walker had just begun to get briefed that the government jones had been the briefing but had not yet entered a cooperation agreement your honor that it's not an exception big the prosecutors turned it over they recognize that they were fired under brady to to produce impeachment information and in so doing disclose affectively disclose who's cooperating effectively just those who's cooperating by showing who from whom they got the letter and also they had to reveal their efforts to harm to verify whether joe is why is that different in december because center questioner is relevant because by that point the government has tried on a five squawk raters because it has to identify its witnesses at trial and any impeachment information it has about them but i just have never seen that my question there's nothing in the manual of that all the manual that then the next sentence wrong or right is that in some cases a prosecutor may have to balance the goals of early disclosure against other significant interests such as witness security and national security of which were for close to them by the government's decision to sit on the documents and then the unfortunate happenstance of jazz his death there's a whole line of  defense that was foreclosed because of the decision to sit on it and not to disclose it i'm talking about in march i understand your honor i disagree with your characterization of sitting on the docket ok that the government didn't have the document and didn't know for sure be exist until june but more than that they thought it was a credible enough story that they pursued the government pursued it right yes sure in march all the government knew were t until june in march all they knew was that walker said one of his co defendants there were twelve of them so that that person is going to lie about what the government acted reasonably in continuing to investigate that by asking jones about it prejudice he said you're not defending the timeliness of the disclosure in december are you taking the position that the government had disclosure in large could have led to fruitful lines of inquiry for the defense i know you dispute that but suppose he's right about that same same answer no duty to disclose in march yes because if it wasn't impeaching of a government witness with no trial date and no knowledge supposedly look i suppose you actually had the document in mark same answer right i don't even if the government had the document in march there's no duty of immediate disclosure and the defense can't stop and right to this even if the government knows that aside put aside prejudice just when and when is the government supposed to disclose the documents and one way finking about the cases the legals the legal rule is in time to allow effective presentation preparation for trial and as things turned out the defense didn't have effective preparation for trial because unbeknownst to anyone but they didn't because the witness died in the interim without knowing about the witnesses that the government had a duty under this court's precedent to disclose in time for the defense to make effective preparation and use an a broader duty under the justice manual to disclose impeachment information to ensure that the trial may proceed efficiently i guess whe the next day because of all it should there's no investigation necessary all it does is show that the witnesses may be telling something that's saying something that's not true we know this letter was defense attorneys representing clients that government a potential co conspirator is a intentional government witness and or cooperating with the government and i guess i don't understand why any defense attorney wouldn't anticipate that in a drug conspiracy from one of the to do some conspiracy i mean it's not as if you disclosing the secret but i'm trying to get deal that's true your honor but the question isn't whether the defense attorney knows that the question is whether these defendants are at risk from their co defendants it is atypical to have cooperation from the leader and to have cooperation downward it is more typical to have cooperation from the underlings and have walker well we all know of instances where the leader cooperate and there are certainly instances of cooperation your honor but that doesn't mean that there aren't real witness security concerns for people who are identified as  witness security is a very real concern that prosecutors should and must take into account when disclosing impeachment information that would identify walker readers in that case and if i may address that the march information regardless of the speculation that defense counsel engages in on appeal as to this series of events that somehow would have allowed them to discover to a defense investigator presumably that jones wrote the letter none of that would have been admissible at trial once but they had died any one to whom he said jones was the author to be testifying as to hearsay handwriting it analysis said that it clearly was not jones's handwriting and so that and jones himself repeatedly denied writing this letter and so regardless of whatever chain of events  construct will speculates in which i think this court has refused to do in this context to find prejudice none of this would have led to admissible testimony about the letters or ship at trial which is why defense counsel cannot establish produce here one more question about marsh suppose hypothetically government has the la and suppose that jackass was the government knew that jazz was elderly and very frail but his death in this in the actual cases unforeseeable but imagine that it's very foreseeable obligation to disclose in march under those facts or  tried to find with the government's software engine in itself and was unable to locate him and so the government in this case made these reasonable efforts to track down this information to fighting the hypo a little bit by asserting that this really wouldn't have been a fruitful line of inquiry and i'm trying to cast the question what what happens in a circumstance where the defense has very real concerns about being able to develop lines of  potentially important and you have very real concerns about witness protection and so i so i think there are certainly avenues to address witness protection in that take to disclose sooner exculpatory brady that made it raise witness security concerns and so that may be a more appropriate approach to take in some cases as to the defense is the one who suggested that the jurors confusion be addressed by government questioning that is at j eight hundred and seventy seven defense mason's counsel propose either that the court cleared up immediately by note or by having the government asked that just as it is true that those were not the st two questions out of government counsel's mouth when questioning of jones resume but the way the government did it was never used mason's house for drug deliveries and didn't even know where masons lived under those circumstances it wasn't the government's squeezing it in it wasn't fact the government setting up the questions in a way that would make sense to the jury and ameliorate any confusion and this is an abuse of discretion standard it is not do no go for the will fourteen severance the district court did not abuse her pride discretion this since before you begin i wonder if you could and we may be going over old ground here but just to help me i want to hear from you how you imagine you would be able to have used this letter but yes i think what you would have been able to do is to actually confront this if it had been produced earlier you would have been able to confront jones by asking him isn't it true that you wrote this and if he said no then to have of the residual hearsay exception could be could have brought in the own call of jazz who they could have found because they would have been able to speak to jazz who could have said yes jazz told me they could have subpoenaed the call records  not nine months later of jazz speaking to people that would say that are apparently recorded you could have had that the worry may have even talked about how he got this letter a number of different ways that you could have you could have gotten cell information instead of looking for cell mates nine months later or you could have you know verified that he was in a cell jones was in a cell with jazz or near cell with  could even find other cellmates that could say that they heard this conversation taking place or any number of different ways that you could have documented and verified this in love were not the ones that put the government in this situation unfolding but then he starts talking about the with the security concerns is just not persuasive this is not a valid concern when my client is on bail because he is not a security risk and when this is a guy turning down on underlings at a minimum they could have produced this pursuant to a protective order and give it just to the lawyers and have prescriptions this in theory concerns easily could have been covered and eventually they got to disclose in any way they did disclose it in there were no security concerns jones testified just fine and there was no suggestion whatsoever that he had ever been threatened in any way so it's totally overblown in the red hearing more importantly you asked him should he have a the disclosures in march and he says well no but this was never you should remain on this case especially since there are many factors that remain you shouldn't say on this one that this record is so clear that they didn't have to disclose and they they talked about the other cooperate or the reviews don't know if i if if you're right you're right on that point gain access to sites you can but where the record is not fully developed a low because the court didn't address the march issue there are other questions that remain they say they got this information from disclosed to this day in addition he says the government you know well we haven't confirmed that this letter existed well the threshold has never been that brady isn't brady until the government of pain is physical for the government to confront jones and be briefing it was brady didn't if it was tangible enough for them to line up a public reform and a crap polygraph questions on this project since it was brady then the rule here should be basic and fundamental if they were affirmatively using exculpatory impeachment information for their own purposes they can't simultaneously would hold that same information from the defense the government said at the end well we did try to find that they are so we could interview him ourself well that's but exactly the problem they want to stay a step ahead of the defense that's what was going on here they withheld brady so they could stay a step ahead of the defense and that's exactly what should trouble this court and that's exactly why on that issue it should be reversed on the on the severance i just want to quickly say he said well wouldn't it make sense to the jury to deal with it immediately after the judge's instructions because the jury would have understood the jury would have understood right after the judge's explaining here's the question i just got asked and they gave this this this this this modest almost nothing curative instruction that the issues right before the jury that's the time to deal with it if you want to cure the taint you do what what the defense lawyer specifically asked i want this addressed yes by the government or the court he said but most important he said it needs to be addressed immediately it wasn't addressed immediately and that's why in part this court needs to sever you've never seen a case like this where a j especially the four person specifically says i think evidence against defendant a is guilt is evidence of guilt as to defend it because clearly confused clearly coming from other