rebuttal i begin with the questions posed of course by this court in the recent order that it issued the st the st question was did defendants open bre opening brief specifically argue that the government's duty to investigate the that the language in the opening brief in section two and two and two somewhat into section one section two was the hooey issue section one in our brief address the the bowie case and the pre objected to it was it was this is kind of a difficult intricate matter because of the interplay with the limitation on cross examination that had to do with the attorney client privilege of mr mr brown representing the five  we were precluded initially from answering from delving into that which tied in directly to the availability and the understanding by the complaining witness of the t v sets so we weren't able to get into that subject until the very end of the trial and when we were able to get into that subject it was extremely limited so we think that with our objection our motion for a new trial and a motion for the mistrial we covered that we also covered it in the opening brief and the government we believe was put on notice by that because they adequately worse well not adequately they responded to it  focused on the limitation of cross examination so now this wasn't this that particular issue as to what did we did we address the issue as to the duty of the governor of the government to investigate during trial after top of those lies i think we addressed it but i don't think we directly addressed it let's assume that the argument was preserved ok i guess i still don't have a question about materiality given that the jury did hear from at least one of the the victims and yes recalling them you know and obviously was in a position to realize that boy he he lied because he admitted he lied and then once they heard from the lawyer even the very limited cross examination you were able to conduct i think most jurors would have realized that yes these other forty three witnesses also must have lied about not know anything about the t v is because their own lawyer told them in pretty uncertain terms that yes of course i would advise them about so the jury was it seems to me to put put on notice so to speak that at least that limited aspect of each of those witnesses testimony was false and yet none of us obviously came out the way that it did so what what's your argument for why not having basically the other witnesses come in and also admit that they lied why does that have a an  jackson be brown nichols and make farley were the only ones to describe jackson's admission their whole case hinged on that testimony same with ha b brown where james was the key witness the crucial witness in the government's case and that's noted hayes it ninety six dollars contrast that with the more to be yes which is there was independent corroboration evidence witnesses so materiality i think that's where the th circuit in many of these cases hayes and use be morris say when you introduced perjury into the trial reversal is all merely automatic we know that it's not per se automatic but when you're dealing with witnesses that are crucial to the government's case any bit of perjury is testimony admitted into into trial is reversal now are our problem is we didn't get an absolute admonition from the from the prosecutors say or an investigation to say these other four complaining witnesses lied to you jury what's the importance of that because mr brown took the stand he said i told those witnesses i told my clients about t v s that's all we are allowed to ask now it becomes a balancing to the jury do i believe mr brown or do i believe the other complaining when i say with respect counsel isn't that what you always deal with the jury i mean you all did a good job of saying you know these fees people i you know you one did the others did you did everything you could to try to get them to not believe any of it yes which is of course your right and your obligation yes but know some of the cases that you referred to basically everything really relied upon these folks but there was no really effective disclosure to the jury in this case you don't have that did you i mean the jury knew about the that into its decision and decided against your client in that nothing in this case again your honor i don't think it is i think there's a distinct difference between the prosecution standing up after an investigation which surely would have said would have told them that each one of these people lie stood up and told the jury these five complaining witnesses lied to you about these things or didn't it didn't defense counsel make that point though we did but also on top of that the prosecution brought tazo to the stand and when they said ok well did you lie it's like yes and then they gave him the opportunity to explain it away that's not the duty of the prosecutor the prosecutors to stand up clearly is in the page case the prosecutor needs to stand up and say and stop and say that person y period they can't build upon and say yeah he lied but maybe there's some there's some reasonable explanation and that ties in one case to re happen when when the prosecution is faced with that that situation and the page court said normally what should happen is a prosecutor stand up after a bench trial with with the just i'm sorry a bench conference with the judge and decide how this should occur but it has to occur well from from the perspective of the prosecution i know they would say we are this witness did so testify through your cross examination you made it clear that probably others lied as well so the jurors clearly had before them this isn't a structural  is no your honor and i agree but the one problem that i keep having is is i agree with you i argued it other i think other defense attorneys argue it but it's simply argument that's the problem and we're always saying when we talk to the jury it's always about well probably they knew it probably they understood that but that this is a fundamental pillar of our justice system i truly believe that and that is set forth inc case after case after case at least that we cite the landmark cases hazmi brown and yes morris we cannot allow perjury or false evidence to infiltrate the truth seeking process yes did you make any effort after the lawyer testified and sort of revealed that yes each of these other witnesses also most of  about the tv's and knowledge did you make any effort to have the trial court sort of force the same kind of investigation and recalling of those witnesses we had if i recall your honor we had a between the the judge and the prosecution and i said look your honor they have to get up and correct this record they have to do that and the  prosecutor said no we don't you can do it and that's been their reply and their position all the time it's clear in their answering briefs you did no we did not b and here's the reason why  to finish and the judge said you can cross examine them mr burr line you could recall them and that's right that's right and i and i'm a mike but it's their duty your honor here's the problem with us correcting the record it's clear in the cases it's not the defense duty it's the prosecution's duty and the the risk that i run which i ran in and suffer tremendously is when we had the call to try and clear this up to try  call the attorney you can see in the transcripts that she was like yes i represent the victims of trafficking and i can't do anything without appearing very rough to the church to say stop that you're not answering my question or you're just you know it was pretty unfair for me to have to do that with every one of those witnesses number one there was no guarantee that they were going to just suddenly tell the truth that's the problem i think a very good point here is this cases inside pan my client was a foreign worker these other five complaining workers were foreign workers only connection they had to this jurisdiction really in this case was the job was there you could tell by the transcripts by the way the testimony was going and the way they did not want to admit that they knew about t v says that they wanted to stay in the u s they came here and clearly lied to the u s embassy to get here i don't blame they wanted to come to us and were when they got here and they ran into trouble they go to the u s attorney and the government and the government investigates it gives them work visas work authorization ability to stay here and the opportunity for t v says bowie has a good point in us bebo if they talk about when the prosecutor uses criminals to just to prove their case they have to be extra diligent i'm not really calling these complaining witnesses criminals but it's the same thing they knew t v says was their pathway to citizenship that's why this question was so important that's just like to a criminal getting a super good plea agreement or not getting prosecuted but with respect counsel just like that you  you can point that out in cross examination you can do all the things the judge said you could do to raise that point you chose not to thought it was a prosecution's obligation and that's really one of wells down to the jury heard what it needed to you want prosecution to take some of the burden off of you i get that i understand that but since it's just not structural error don't we just have to examine whether this affected the outcome of the trial yes that that's absolutely where there's a reasonable point to your to your point is we were and this is the interlacing of the cross examination limitation because the attorney client privilege we couldn't do that we couldn't sufficiently flush out all those facts about you knew what a t v so was your attorney told you about it and your attorney told you that it's super important to help to cooperate with the prosecution and that's the certified gets on behalf of the victims all of those i would submit we could have won that case with the testimony of a case agent and these exhibits i would also like to address what i believe is a fundamental weakness and the defendant's argument and that is that the knowledge of t v s was would have provided a incentive for these victims to lie i would submit that on the contrary these victims had they known about t v uses would have been told that if they live they will not get a t v so in fact i think we'll probably learn this the hard way it is the government's burden to produce enough evidence to establish guilt beyond reasonable doubt it is not the government's burden to debunk every single conspiracy theory floated by the defendant and that's what this was your guess i don't read the record that way at all counsel i mean that in all likelihood these other four witnesses had lied just like the st person had i guess i don't think of this as any kind of a pie in the sky conspiracy theory of the lawyer admitted that i advise the clients about this on the stand each of them denied any investigation as to each of the other four just as you did for the for the one guy if i may be permitted to speak to matters off the record we did we called them in and we asked them did you have any discussions with the attorney about t v s and they all said that they do not recall having those discussions we warned them that they were likely to be recalled that's what we expected to happen and we told them we'd monitor them that good better ugly you need to tell the truth  recollection and again this is all based on recollection unfortunately this is the telling of a trial in the middle of a hot trial a lot of firing back and forth our agents did not make any reports i scanned to see if there were any e mails to counsel they were not but my recollection is that i informed not mr burr line but one of the other co counsels mr torres i believe it's all based on recollection from two years ago but that we informed them that we talked to the other was if they took the stand that they would stick by their stories that they don't recall that and that caused the school's explanation that the conversation was with him and that the others were not paying attention you know i  know that that's probably not going to be satisfactory to mr earle line and his preference would be that we call the witnesses and imply that from screws but you know we're not supposed to do that so you know based on our investigation and the demeanor of the witnesses when they testified at trial could our was able to observe that i think he agreed with our assessment that the innocent explanation was a most likely one and therefore based on that you know the proper resolution if the defense insisted that there was some wind then the proper the easiest way to get to the bottom of it would have been to recall those witnesses and i think the judge who never left the door open for that and that would've been the best possible resolution why didn't you feel i mean i understand what you're saying that it may be you talk to these witnesses and they seem credible in their denial but why didn't you feel that it was your obligation as the government to put the witnesses and if if they in fact offered the explanation that they did then that's obviously to your to your benefit but i don't i guess i don't see how you can shift the burden to the to the defense to say well hey the witnesses are all yours go ahead and call them if you want we'll tell you right now that they're st at this point the case was in the defendant's courts we could have reopened the case but they could have just as easily called those victims back to testify and they would have in those circumstances had the st shot  counsel was complaining about how we asked about whether or not he lied and then kind of asked for an explanation had they called them they would have had the st attempt at questioning and they could've for lack of a better way or described an ambush them and that would've been more effective than us going and conducting our own investigation because it would been under oath and so i think that would have been the most satisfactory resolution as to your point why would it not be our responsibility and i'll take this opportunity to distinguish this case from the case i think that's how you pronounce it i'm just guessing but the ils case you had a letter that was kept in the within the confines of the prosecution team and this was a letter that indicated there was some possibility of perjury by one of the witnesses and they kept that within the confines of the prosecution team it was not revealed they did not put the defendant on alert  seventeen years later in this case the defendant was on alert from the very beginning from almost before trial i would say in fact that was a major theme of their argument throughout trial and so  know this is not invest a situation where we suspect that our witnesses had lied we need to find out and if we find out then we need to bring that to the court's attention absolutely but in this case distinguishing this case senate was well aware of it they could have recalled those witnesses that would have been the most effective way of cross examining that are getting to the bottom of this i should say from the defense point of view and frankly that's what we were expecting  we had warned the victims that you can expect that you will be recalled and in asked about this did this actually presents and it's an issue from the government's respect you as well because your counterpart suggest you have a burden to bring them back out but you've been told by venom that they didn't have any recollection at all so if you did that and you're basically proving a negative because i don't recall anything so what would it be accomplished there other than perhaps your opposing counsel might be saying that you had sandbagged them because you thought you're going to have that they thought you were going to come out and say that these folks lived in do that you just reinforced what was said before because they said they didn't recall and got language issues and all that sort of thing so perhaps you kind of damned if you do when you're damned if you don't in that sense is that a fair portrayal of this yes your honor and just to add a little bit more cont t i had to smile when his reply brief the defense described how hostile it would be to reach for them to have recalled these witnesses and these are young  think twenty something poorly educated men from bangladesh who were in a foreign court testifying in a foreign language and they were not you know colonel nathan jessop you know these guys were were very were terrified to be in that courtroom and so to say that he would have come across as is or his direct examination question of them regarding what they had the conversations that they had with their attorney you know maybe he would have seemed like a boy but you know that comes with the territory of being a defense counsel and sometimes prosecution has to be in the position of being a bully if the goal is to get to the truth so you know given that context and again going back to jude judge who now or who presided over the church trial he was able to observe these witnesses these victims firsthand their demeanor and his conclusion at the end of the day as was the conclusion of the jurors ultimately wasn't troubled enough by what occurred in his presence and you know despite his attempts to get the your colleague back on track but i have to say i found it very troubling and it struck me as blatant and obvious misconduct and it was some such a repeated basis to interject matters that were outside the record that i started to get the feels as though your colleague was doing this deliberately i might like to hear your response to why we shouldn't reverse the go be on the line judge to an hour would cut him back and bring him back and the line nd he would remind the jury that closing arguments are arguments only and should be viewed in that context can't do that it's completely improper there is no reason why a district judge should be put in the position of having to repeatedly sustain objections and then try to cut off the prosecutor who wants to continue notwithstanding the fact that an objection has been sustained to continue to blurt out matters that are not properly before the jury that strikes me as that's why i said it's so it was so blatant and so egregious that and done on a repeated basis that i had to wonder  deliberate is this just someone who is willfully flouting the rules because they want to gain some advantage before the jury i just found it deeply troubling i gather nothing has has happened to your colleagues everyone in your office thinks that he did a great job in closing argument and congratulations on the great one and i assume that's where things stand that's my problem with you know having our court here just say well it was clearly improper but none of this really mattered come on it was closing argument the judge told the jury you know lawyers arguments don't matter obviously if we sort of give our stamp of approval to that if the signal is you guys can just keep doing it because nothing's going to happen you know at least unless you i don't know what more blatant misconduct you could commit than what i read in the transcript but i just like to hear hear your thoughts you haven't said that any of this was proper but is that the your office is position that the misconduct was committed i cannot speak to you know whether or not there have been any internal measures to to address that what i can speak to is in terms of whether or not it was deliberate again you're asking me to put myself in the shoes of my coworker i would say that we did have discussions prior to his closing argument where he wanted to make a kind of larger political statement than i cautioned him against that  said from my own personal point of view and of course we're biased for the government i don't think that anything that he said step so far be on the line that it would render the whole trial fundamentally unfair i think at the end of the day given the on admonishments of the judge and the judge was i think strict and conveyed that he was displeased with the direction that the closing argument was taking and the jury read that and or stood that so at the end of the day is that enough to overwhelm the evidence all of the documents all the testimony that was submitted after a three week trial i understand that you also have a job to do and a point to make and to ensure that prosecutors understand where the line is and not to cross a line but i think that that can be done without disrupting what was otherwise a very fair trial and i'll just make one last point our really went to great lengths and it was much to our frustration to provide the defense with a very you know in our set in our view extraordinary measures including allowing a witness to testify via skype from bangladesh that's something that the government would never be able to get away with and yet the judge gave an instruction that they should treat that testimony as if it were in the courtroom itself and so there was a lot of frustration on our point and i i see the amount of time but i can answer other questions you know ok i think we're fine thank you very much thanks