inventory for his employer and to effectuate is right six and a right to present a defense mr lester sought a rule seven hundred c subpoena from his employer for the records that would prove his innocence that would prove that inventory was received albeit outside the normal course of business for his employer just record tonight his request his request was extremely specific he asked for several different accounting items he asked for shipping labels he explained why he would be privy to these things because he was the c f o and the controller of the company at that time is two minutes before we get all of that that was denied correct it was and went and in just a minute discord said there was on the specified representation regarding fairly broad categories of documents just such as are sought by the pending application  did make one pretty dry he didn't and i don't know what he would have done and you know the government doesn't suggest in their brief what should have been done to sort of but really have a exemplar of what he was seeking and then you bring that up at the at the post trial that's the kind of document i want judge didn't yet know he didn't and well he could have been more specific could he not by showing the document that he wanted to the judge and he didn't do it for strategic reasons because he wanted to ambush with the prosecution complete he's really this is and most it is the goofiest theory ever that someone would would leave out their best piece of information throw the trial come back after saying you don't believe in it but the problem is that we have a standard review and that's standard her view is abuse is gosh your views discretion is it then yes it is that's discretion standard that's why you're getting these questions and i don't see exactly why this is an abuse especially when one says without prejudice what else would he could have a guess he could have got back the example he had you know the thing is this is a penis directed to hylands who was not confused in the least they knew exactly what he was talking about i don't know that if you make that argument then it becomes the government has nothing if you're making that argument then why is the government why do you there is absolutely no brady duty on the government to turn anything and if you're saying highland should have turned it in i mean it's supposed to be the government who is going to turn in any brady material so if you're making an argument and saying well hyland you know it has to be the government who knows what it is they're going to present to you sure there's a good answer to that and this is the answer one is that the government and highlands council were working together there's hyland that there's a civil trial still pending pending the outcome of this appeal i've interfaced with mr lester civil counsel to mr lester asked for these items from the government and there was a look these are terrible oh i see or some other investigative agency had that evidence and the d o j said law that that's not us we don't have it and the six circuits that look the left hand can't say to the right hand we're separate and so i don't even think we get to that point because the government didn't know what they were supposed to turn over because the lawyer wasn't specific enough what the court did and i don't think they did turn it over it's they actually turned over one of these in discovering that's where that one came from i think there were two additional ones that w produced some sort of post trial investigation that i wasn't part of i wasn't trial counsel below but there was what the government knew what it was and i don't think you have to teach accounting classes in boise state university to know that this is an accounting thing if you google this this term this  physical count adjustment ports a simple two second google search will tell you what it is and the thing is his application is extremely specific and it's not just about these it's also about shipping labels and some pretty basic things and the standard that the district court used to deny it was george which is this goofy bank robbery case where the defense made a very big fishing expedition that was conceded by its counsel below to be just that a fishing expedition so in terms of the i want to go back to judge smith's question of the stand review i think it ought saw some statements from wells fargo and the district court actually granted subpoena wells fargo appealed and won at this court in a one page opinion with almost no analysis at all citing nixon and i think commentators ex post have looked at fields of what does this mean does this mean that nixon applies does it mean that rule seventeen just doesn't apply to impeachment materials because that seems to be the tenor of the opinion is that latter idea is just impeachment but in this case when it did anybody ever say what t documents they wanted they asked well yes where after the it's it's after the trial after the trial because the court actually re order the trial did they ever say the documents exist discovery so the government knew it was important it's a basic accounting document it's described with great detail and specificity in the application which is all that's required under the really he did more i think it is required i mean this is like a search warrant the way this is written it's very specific you know given this  now that the courts reason you could never get a search warrant issued additionally it was discussed during the cross examination of patricia regard to who was the accounting manager at highlands further after trial we get this when the court actually says you know what i might  and when the wind highlands responded they knew one exactly what mr lester was requesting they knew that there were some out there and they said we don't have them now what there might have been created within this very specific time frame doesn't exist now if i had  school students here in the courtroom today you know if i said you know judge i'd like your records of how many times you cheated on your s a t or else that what you would say i assume is i never did it there's no such thing but if you said well the records of my cheating if they were around they're not around anymore that's a very different answer and i think given that answer mr lester was able to show he would be able to show prejudice because the government would not appeal to argue in closing the reason we don't have these records is because they don't exist they never existed because they did in already given us your argument then the other one will hear you know that there's pretty of council voting i'm just sort of touched on the point that i've already addressed the government was aware that this document existed or that existed at one time they were working with highlands they were duty to ask pilots because mr lester had requested these things pretrial and in fact if they assert privilege i think it's conceded that there was some communication between the two and there was document sharing hylands was happy to have mr lester prosecuted they were in the middle of suing him it's a very contentious relationship it's still ongoing and the government should not have been able to argue to the jury hey the reason there's no documents here is because they never existed when in fact in truth they had they just didn't maybe exist anymore at least after trial we don't know when they were when they were destroyed or lost but we definitely know by the time of post trial they were without a reserve of the court as any other questions right  good morning in may please the court my name is henry karbala representing the united states in this matter i think it may help to just briefly explain sort of the core of the case and why the  claims with respect to these women tory reports and some of the claims of the fund is made or in the district courts words are a red herring or it didn't matter where relevant mr lester stole over three hundred thousand dollars from his that money landing in this personal account is that it was not spit on him in tory period that was shown at the trial instead it was spent on things like cash withdrawals and official check purchases mr lester credit card payments property expenses for mr lester and even some investments for mr lester including his e trade account furthermore there was testimony at trial that three hundred thousand dollars in the relevant time period of inventory from some made repeated comments about the evidence of theft being overwhelming but also second that these items that mr a lesser strategically intentionally held onto didn't matter they weren't relevant they weren't material they didn't they didn't move the needle in any in any way because of the core of the theft that occurred what we those physical counted just made my point show physical well we're not sure at this point if there even a category of the district court comment on that it commented on that as well and len laid the at the feet any ambiguity is if they feel the defense because of how they proceed these purported documents that came up well after the trial weren't shown any witness they weren't given the highlands force one response and so unfortunately we don't know exactly i'm not even sure how to characterize i can't even conceive that that is an actual category of document highlands because of the way things transpired i can't speculate as to what well in fact another point is this i can't conceive they are what what mr lesser claims because as also noted during the sentencing proceedings there was a evidence that mr lester fabricated items we don't know the source of these purported documents they've never been authenticated exception of these the dummy package samples that mr lester sent from vice l u into the highlands warehouses and put a false label for false company on what  unspecific about a demand for a document describe highland physical count adjustment report for each month but with one specific  about i don't know if the problem is specificity so much as asking for categories of documents because a district court also noted that that was a defect in the application as well as europe is your point that you have to first source and you had records that showed it and your position is the records than exist report and you say there is no such thing as the physical can't just report and there's no evidence that there was one and that he shows up at a post trial with one of those documents and was  came in from non approved enders there were only five or six vendors that they had during the relevant time period all of which were able to be identified by the radar to testified and the only thing they came in from one of those from a strange source was mr leicester's american products roots so there was not inventory they came at so is that the only report is that the only physical count report just my report the one that they came w with are you talking about defense exhibit b yes is that the only one well that's what they called it they called it a physical county just report when it's actually presented to mr regardie she calls it him and her receipt report and that's what makes this  f it was very there were a lot of of unknowns with respect to what the defense was asking for and how they were characterizing things and it continued all the way until sentencing where  with these things way later and didn't link them up to anything and didn't didn't authenticate them didn't do any of those those things that you that one might have expected i would point as well to that it 's clear from the sentencing transcript that the defendant had these during the trial before that and they said it was a strategic decision he didn't say i understand it in the briefing and i believe  counsel alluded to this is that in the presentation in his presentation that they somehow came up after trial that's not what the transcript shows in the representation representations by defense counsel they said it was a strategic decision not to come forward with them during the trial they had them the whole time and chose not to present them to the witnesses that you would think naturally they would present them to you so when you say them trying to read the transcript is there any idea they had anything more than exhibit b the highlands yeah no is there anything more that suggests the that the defendant had any more than exhibit b i don't believe trial i mean you're saying them that's is they idea they had some they had the very things they wanted and they were using them a trial but i didn't see that in the transcript or they didn't present them at once them i'm sorry exhibit the defense presented exhibit b right and the first time they referred to it as a physical kind of just report was at the trial ok that's what you're talking about that yes but be correct nothing more than exhibit b correct not at the did she also testified there were other reports they didn't ask her that she was announced she was presented as a prosecution witness yes this is on cross examination of exam she this was during cross examination a government's exhibit eight she was asked general questions apart from that on how she tracks or inventory and i believe there was a leading question on do you send official count or just reports out monthly and i b she didn't say yes she said to anthony i wasn't told one can presume from that maybe there was some type of inventory document but importantly in that examination she indicated because there were some representations made in the briefing from the defendant that these physical contraction reports came from the american contractor program she said she didn't have access to that inventory program and said she kept the inventory track of them and tori on her own she had her own method so whether that particular category or term relates to her own private on the ground warehouse method of tracking what those out with the crews in advance of various sites it's unclear what is that they did have that's what they say yes that's what they claim and that's a defense claim sorry s that's going now that's a claim now correct not the claim of dr no it wasn't the only thing that presented in this were was defense exhibit b and there was there was nothing else presented from the defense on this on that in this area authorized the attached defense exhibit b as an example the declaration in response explains exhibit b how it came about whether there's any other documents like it that answer was negative and further explained why there aren't other documents and i would look at paragraph i wish is that as you are to ninety four which explains how mr lester did the transactions there were posted to certain accounts that didn't have a paper trail and that's why no other documents were generated because of how the transactions were posted it wouldn't have generated any other documents but it moreover and they indicated what was what ended up in inventory and why it's in a report is it was a very unique circumstance i think mr regardie also testified that this package just showed up unannounced and so that portion of it made it into an court to e r page one twenty three you know for a long time people didn't think black holes exist and they do and it's the same thing the physical count adjustment reports so she's being questioned on the stand you said you emailed physical count adjustments to other employees yes and the monthly physical count adjustment was provided to accounting is that correct her answer that could be us and a no we had two different there were two different types of methods i had my method where i kept track of my inventory and then there was the american contractor which is a proprietary system i put in a foot in my brief which had a different tracking system that i had no no access to so what i reported it was a physical count of our inventory and then that goes on about an email chain and so forth the point here is these records existed it was clear to everyone that they existed highlands was very aware of what they were and in terms of want to jump ahead to something that was a council said about their answer number five where they had a sort of provide some exposition about what they thought mr leicester's role was there's a very acrimonious relationship there's they're suing him so of course that's their position but the paragraph before that is the important one number four where they say look we might have these things but we don't have them anymore that's the important part in terms of the fact that whether there was just this one i don't think that's true and when mr lester submitted his post propagation it didn't just have defense exhibit b there were some of these monthly reports that are sort of an a larger extrapolation of what's included in just this one physical count of just  report the bottom line is someone's accuse of stealing and they want to prove they didn't steal and they ask the person from whom they're accused of stealing who has those records to turn him over they ought to be allowed to do that and if they don't turn that over if the