argument three of the issues relating to the discovery pile ations the issues relating to the abuse of discretion in denying the defense the ability to cross examine government star witness and then the last issue i raised which is characterized as to repave argument with regard to discovery violations the question that probably arises why doesn't make any difference in the reason it makes a difference because the defense in this case was credit the defense was sloppy investigation failure to test the evidence he didn't witnesses staged photos of the evidence in place questionable witnesses all equal to beyond a reasonable doubt and the primary piece of that was the failure to do any scientific testing the pretrial order in this case require disclosure of test exams in result it clearly covered this fingerprint evidence test and the fact that it is a negative test doesn't make any difference for purposes of this argument is the argument of the family that it allowed the defense to blunder into this argument that there had been no testing when in fact there had been testing the other part of with a little more specificity how he would have been altered to do so i don't i don't know how they would have i don't i i can't what comes to mind is perhaps the case might not have even gone to trial but for the government to not know i'm sorry because just ranters question is a good one don't you have to demonstrate how things would be different in other words how the delay resulted in a prejudice that materialized made something different in this case an outcome different or something of the store yes i think i do and i think the outcome is the gut the defense opening statement which said which states there has been no scientific testing here to determine who actually had their fingers on the gun and the drugs that were hidden in the truck and i agree it's the defense that was predicated on the failure to testing is part of the reason why you should have a reasonable doubt when he as you pointed out i'm sorry was it a man or woman that was  defense attorney at trial it was a man and he said so staged photographs hidden witnesses lack of fingerprint evidence and who likely suspects create reasonable doubt so it's  not you know the primary focus of the defense nor was it throughout the trial it was just one in a series as you said of investigative blunders well i disagree with you because the principal argument was going to be no scientific testing why didn't they test this this the drugs and the gun for fingerprints that would have answered the question of who at least and there were literally their fingerprints on it on it when it was hidden and i do not understand how the government gets to violate its discovery obligations and there are no consequences the only one to tell the council this judge boggs that you do have to show some prejudice and when it come when it came out that the fingerprint result was negative that is d they couldn't determine it doesn't that play into your defense that the they even tried and they couldn't find anything on my client it's a little bit different but it sort of helps and did you did who did you or your your counsel below the tell the jury that they just now let us know this they had been hiding that all this time and just now let us know that they couldn't find any fingerprints you judge banks i was not trial counsel trial counsel did not do anything with the disclosure i will say that and thank you for have he could have but he did not but what happens with that the latest disclosure is frankly it makes the defense attorney look like an idiot like a his opening statement does it or does it make the government look like they're bungling this case because if you point that he could have and should of made look i've been demanding this all along and now the government turns it over and it doesn't have my guy's fingerprints on it will surprise surprise they hid this from me and it doesn't have my guy's fingerprints on it your honor perhaps there is something that trial counsel should have done he did not do it i will agree with that there was no argument or testimony in front of the jury at least about the government doesn't know about it i'm sorry karl's kyles versus whitley says that doesn't make any difference government is required to look for it and they took this case the feds took this case over from the state material it was a violation of rule six dana the pretrial order that still leads us back to the materiality question doesn't it what your best argument for why the delay disclosure it allowed to defend the defense attorney to make an argument to the jury that he could not prove of the government's failure to disclose this or that they should have  they should have disclosed it it's no big deal it's a fingerprint a negative fingerprint report y y that's the best i can say this i game or before this there's been a string now of six circuit cases talking about re hafe in the context of a plane or argument where the trial occurred before rehab i understand that the governing case is us ward the concern i have about the ward case in its being cited in the government did cited it for the  that the rd don't win which is the reasonable probability that what for the error the outcome would have been different allows the court to look at the trial and that is what evidence was presented it trial and in this case there wasn't any other evidence that would allow the jury to make the factual finding big arison knew about the prior conviction and supposed to in fact being convicted i don't understand under old chief if the government is forced to stipulate it's one of the where occasions the government can before it's stipulated that and if i was the trial judge and they tried to introduce evidence of the prior conviction i would probably declare a mistrial i mean how can they do it once the stipulation is entered and isn't it true this guy had twenty seven felonies after age eighteen and that's let me take it in parts judge they parked all right the trial judge here certainly would not have been able to allow the government to introduce evidence on that issue it's pretty ray have we all know who they are really have flipped the script but even post three hafe you couldn't are going to have different language in them and i'm certainly seeing this already in the eastern district of michigan is the did all she stipulation now includes but the specific call it the language in that the question is the government would not have been expected to do this could they have done it well prior conviction is usually admissible if you have the supporting documents for it and my client does have prior felonies but that their argument i think goes to the th element irving fifteen years on the felon in possession conviction count one airfields twenty seven dollars prior felonies and whatever it is because he has to be convicted of every know of the proc that know that he has a felony conviction that's the case that cases are making and when they're looking at the evidence at trial they're looking for other evidence that the defendant knew it and in some cases it's pretty simple they've got a recorded telephone call from the gerald saying i knew i shouldn't have the guns or they  of a witness who said well he told me he knew he wasn't supposed to have any of this stuff that is what's missing from this case and if we're results oriented maybe it doesn't make any difference but the process and the procedure here the fairness of various since trial is i think compromised right out of the gate from the defense opening statement that the trial was not if one of those twenty seven dollars is is he has already been convicted of being a felon illegally in possession of a firearm is is that what you're getting to that there's  that that should be included in evidence or used nothing other than the stipulation and then some current evidence that would show knowledge are we talking  prior conviction i think they can do that any number of ways and in fact in every single post re hafe case that i've read there has been something else in the trial my position is there is nothing in the trial record that would allow the court to say that it that there is no reasonable probability that the result would have been different they are not and are you saying that a little chief is no longer good law that the government doesn't have to accept the hey no i'm not saying that but i'm saying that pup will happen is the old chief stipulation will be really written to include the element in the defendant does takes it or leaves that thank you for your arguments it is did you reserve rebuttal time i did yes ma'am you will have that  is that rule sixteen requires a request for evidence the pretrial order the pretrial discovery order also required a request for the evidence that event it never made a request for results of reports tests or any of that nature nothing in the line of rule sixteen a one  the motion that counsel made before trial spoke to physical evidence did not speak to reports the judge's order when the judge entered the order granting request for the rule sixteen the judge cited specifically rule sixteen a wanna be not six hundred and eighty one f which would have covered this fingerprint report so we don't have the request we don't have an error here i'm struggling with that counsel i'm just struggling with the argument that there was not a request made for apple at now looking at the record that the request had been made both before trial and encapsulated in the court's order to you the provision of scientific evidence or reports is just so common that i'm struggling with an argument that says you didn't ask exactly right so we don't have to get well i understand the concern there judge but i invite you to read very closely the order which is  record fourteen and it specifically does say that upon request the the june for the orders as the district court ordered the government i'm quoting to permit inspection and copying of of all subject to disclosure under federal rule of criminal procedure sixteen and i agree there has to be a request under the role they made a request for exculpatory and impeaching information  no the judge the prosecution was unaware of the report now we're still charged with knowing that it was there since it was in law enforcement that was a mistake but it was an i'm sorry this can i just ask a process question i'm kind of big that a prosecutor would not ask the officers did you frank evidence that's like one of the number one checklist prosecutor questions you ask all officers it is absolutely judge and where the error occurred here i'm not positive whether it was the prosecutor's air to make the request or if it was the detectives ere to you know missed this report i don't know where the  one who rented it for harrison and garrison was driving it around and using it for boeing to never even came into the picture so that kind of undercuts his claim that bullington was the one who put this evidence in the truck and two it's not very logical why would a drug dealer actually put evidence in a truck in have somebody else driving it around who doesn't know anything about it isn't part of the business so so that the  twenty seven felony convictions so that evidence here shows that this mistake was not something that altered the trial or the scale for finding that the error in the indictment did not affect the defendant substantial rights i'm wondering if we are missing a way in an argument from the concept that felony i'm not sure which one it was these are serious crimes that resulted in a significantly enhanced sentence and there are there are numerous problems it's the record here kentucky in terms of when you get an old chief stipulation do you have it say he was a felon and he knew it or what how is that coming out now days judge i'm sorry ed i don't the answer to that question i didn't think to discuss that with with our criminal folks i believe that's probably what we're doing at my guess is that it's probably pretty much across the board that most or all districts are including that language in the stipulation and the stipulation by the way is generally not offered from our side the defense is the one who  asks for the stipulation at trial because it's the defense who doesn't want us to be able to show the jury what the convictions are and prove the convictions and prove that he knew because you know it's going to it something that can be very difficult for the defendant so they want if we don't we're perfectly happy if they want us to go ahead and prove the family convicted but in that in that case then what do you do to show that he the the defendant knew it that is let's suppose they didn't make a stipulation and you introduce his conviction how does that help you satisfy reggae for these days advises the defendant that this was a felony conviction and we can show that the defendant is present sometimes even answer they acknowledge yes we understand this is a bounty conviction so that and there are many ways in the fact of numerous found a conviction that i had a drawn on the type of convictions that a person has or that the severity basically of the convictions if there's something that's not particularly severe if it's something that depending on you know quantity or your amount of  all right i'll start i'm not sure what the time clock instilling that what i'll say is the government says human error occurs where is the prejudice that's the issue yes where is the prejudice the prejudice is my client's attorney could not read to him so pening statement he could not shift gears now and how does he how does he explain to the jury the significance of the failure to disclose how does the defense attorney make the jury understand that oh up until two days ago when trial started i didn't know that they had tested this this evidence what is the jury suppose what sort of a conclusion is the jury supposed to draw from the the defense attorney trying to backpedal now and make the explanation that properly belongs to be made by the government i don't know but i do know that it's prejudice in the eyes of the jury the juries are watching the defense attorneys they're trying to figure out who is the truth teller here in the failure to disclose this made the defense attorney look like not a truth either not a truth teller or somebody who's not enough on the ball to know that in fact there is this evidence with regard to read to the reader hey if argument and i preach it consuls correction on that because i suspect that that is the correct pronunciation the double powell the court has properly observed that no other circuit and they've been specific about this have used the old chief stipulation as it existed  the scale every single one of the other cases including the cases cited by the government in their brief have looked in the trial record for additional evidence on the had not the end of it because certainly that th plane error prone can include an unfair excessively long sentence for the conviction they had said issue and that's the argument here this trial was unfair the conviction on count one is unfair and upholding it on appeal is fundamentally unfair and that's my argument for mr garrison we thank you both for your good briefing and your arguments today and for working with us electronically the case will be taken under advisement and opinion