governor never thought i'm i'm sure you know so let me revise what i what i'm asking and both sides cause subpoenas to be served upon the same third party the third party at through your subpoenas off and produce the very material covered by your subpoenas for the government and the government did not share it with you set right i think it's right it's almost i'm not qualified i used to enforce the compulsory process i want to put a surgeon in jail until i comply well you know in this particular case whether or not chevron should have been jailed or whatever the truth is that the perth the very person who wrote a letter to addressed that there was no there was no force there would be a way to get a case i was thinking about how did it come about that i was in a position as a district judge of enforcing the constitutional requirement for compulsory process and the way came about was a motion for an order to show cause why the non complying third party should not be held in contempt and it and then i held a hearing on the motion and ordered the third party to show cause and the third party did not show adequate cause he just said he wanted more money and they're willing to pay him so i held them in contempt and they ordered that he be put in jail so he complied now if that's the standard procedure and what you would need to do is move for an order for severance to show cause why it should not be held in contempt for failing to comply with your subpoena but i guess you didn't rather whether the district court abused its discretion by allowing the prosecution to submit the evidence regarding the alibi after you with duly subpoenaed it and they didn't have been obtained nor provided to you by the government that's fair but it but the but the it's also based upon the compulsory process right now what we're really carving out in our discussion now is what is the appropriate remedy right and we did and that's why we're here with respect to the note reality i noticed provisions the two least excuses that were raised by the prosecution was one of the notice itself i'm prepared to again we didn't do the initial noticed so then the government this is on the actually the government wrote us a letter and they said your notice is incomplete because you didn't give us the time when his trip began and the time when it ended we shot him back a letter immediately it's also in the to allow the prosecution to lie in the weeds with that because it's an effective instrument for the truth once the person pins him down in testimony i was driving from l a to tucson and that only i and then they can pin him down on cross i need only one with a credit card you only want to makes gas purchases with the chevron credit card is me and then spring it on him it seems like it's an instrument for  me to be preserving the defendant's right to put on a false alibi well no this is first of all what goes on in the family's mind in terms of whether or not he should be putting on a false alibi is not something that i can address i could tell you that as an officer of the court the other it's a government disclose right the reason for the rule that the defendant discloses is to advance truth it's obvious that the grassman of the rules think a lot of alibis are just phony and that if a person says i was in such and such a place then and for the first time on the witness stand there's no way the government can prove it's phony so the government has to have a fair chance to prove that it's a phony alibi but then they come up with the other side of the world that the government has to disclose and i guess the scope and extent of the government disclosure is  and this is an area where the prosecution the yad defense must disclose to the prosecution that there's a loophole and whether the cross accusing has to disclose to the defense page twenty of our opening gre he has to tell precisely where he was is ridiculous when applied to the set of facts if you're driving from l a to tucson you have given notice and you say i was driving from three to eleven you've given notice that sufficiently precise for the rule that the government knows just what the alibi s now the government has rebuttal evidence for the alibi shows the alibi is a lie my thought is the government ought to be able to lie in the weeds with that in order to show the jury that the defendant is a liar if he presents the alibi however unless the judge makes a specific determination that this falls within the exception the general rule of rule twelve seems to say the government must produce this rebuttal in advance and it looks to me as though the judge did not make that determination that it fell within the exception and in this case because the defendant himself subpoenaed these records it's an especially strong case for the defendant getting them basically chevron blew off the defendant subpoenaed and complied fully with the government's request at so you know i can't go  a case where the government was surprised as to the details and it wasn't until the descendants that i made to gasoline purchases if you remember we have a spreadsheet which enterprise rent a car which you may or may not have expected or confront of the government's exemplified in the record on but it seems to me that if he says i was driving to two thousand from three to eleven and you have a good documentary evidence that he bought i asked in tucson at nine in the morning that you do in fact you're saying that your evidence did not rebut the alibi necessary not until he said so he says i didn't fly anywhere that day and i made to purchase it after the same time i went inside and just snyder who had the ability to  we know that was talking about chevron and i guess we could have everyone could have guessed that that might have been the testimony but to my knowledge there was never any notice to the government that you were going to take the position you know taking which was triggered the argument made by the government was our obligation you're saying you're saying if she said the right thing under rule twelve the interests of justice exception in april but at that time she did not actually know what the rebuttal evidence was maybe six knew what the rebuttal evidence was but it seems to me she said the wrong i think she didn't say the interest of justice what she said was the defendant didn't give enough notice and if we assume that there was sufficient notice then it doesn't with that because you never know exactly what's going to work effectively in rebuttal throw you hear the direct in the cross meeting after you have to see can you lock the person into their own tenable position and you never know if it's going to work till you do it right which strange situation where cher prime responded differently well i think that's strange if you've done criminal defense i think that i have been told as late as they blow you off when you're the criminal defense lawyer and they're scared of the d for one more little detail i am on the you have multiple conspiracies instruction generally you don't need them for where only one defendant is standing trial but i don't think we have a firm holding in place that you never need them for and in this case it looks like there is a real issue about whether the defendant was involved in the earlier criminal activity or whether he was just involved in the later criminal activity why shouldn't the judge have given a multiple conspiracies instruction sheet she found that there was only one conspiracy and here's what she was but there is no action for four years right now but your honor th you know if it was a conspiracy of college professors and nothing happened in june july and august well they're all hopped for the summer but for years that's really a long time for the same criminal group to be engaged in the same criminal conduct the ledger showed that mr wallace did receive funds from the heist which he did not participate in and during closing his testimony he didn't argue i was part of an earlier one i wasn't part of the leader when he argued i was thought you had run just to the end of your time but why did you take one minute early bottle anyway were some how or other further misled by the fact that they gave us this document and after chevron said there was nothing else it was a likely conclusion there was nothing else so i think that's an important consideration and let my last  if that were true then the information they were holding under this winter has a name it's called brady versus noah and what the government is telling you is that because they have two different choice