you have a limited time to smell anything so you should feel free to go straight to the heart of your argument and make the most important points that you want to make this morning we're probably going to have some questions if you're in the middle of an answer to a conspiracy to traffic in drugs this case rebound around an essential which witness who was a confidential source employed by this confidential source was the only government represent representative who had direct contact with my client while we adhered to the fact that there were requited meetings and recorded phone calls my clients position since day one has been that he was entrapped that there was conversations and contact from this confidential source that were not monitored by any police officer my client was arrested and indicted in this case in june of two thousand confidential source had been in activated by the f b i and till halfway through the trial is a the leyton brady violation as a squid is well aware the courts have for years been concerned with  i don't think that that's really clear from the record that they made him available i know that i was not the lawyer in the lower court and i have reviewed the record several times i know there was a motion for his identity disclosed i know that the government before they disclose that he was double dealing clearly argued against the release of that information i don't i can't tell the court quite honestly what was done i know the judge denied as for the record half of it and granted another part of that motion when what is clear is that the trial began and these defense lawyers met with my client on numerous occasions went through all the tapes prepared their trial based on the fact that this confidential source was a person working for the f b i a person the f b i relied upon and that was their strategy of the defense they went in in their opening statement they came in and cross examine two witnesses the talked about how important confidential informants are how this confidential informant work why they use confidential informants halfway through the testimony of their lead agent in this case they were given this bombshell information that this same prosecutor this isn't a different prosecutor there's no question that this same prosecutor had this information six months before this trial less than sixty days after he indicted this same case while he gave the defense at least four different discovery requests he never in one moment mentioned that this confidential source who was crucial and important to the case was a cheat had lied and that the his he angela who was sitting next to defend next to the prosecutor throughout the entire an informant no he finds out sixty days later when he reapproach is this a boy meant to do another deal with him and then the appointment says listen i've been involved with i transported marijuana for another person i didn't make memorandum to the prosecutor who's involved in this case so since the beginning of this prosecution thirty days after the indictment this prosecutor is well aware of the fact that this  that point would have been a bailable because he was deactivated their hope to read of their defense their hope preparation would have been different and they would have been and it would have resulted in a different trial just the sum it up it was a  opposed to just being able to bring it you would have been able to examine some witnesses about it but you actually called the agent who made the decision to terminate it absolutely  about how different what this really well they would have then made a decision on whether or not they were going to call the cia or not it would have had much more background information on the c i they could have ben with the investigator go back get him to call the c do about his background how long he had been a cia what exactly he did how much money the i mean there was a lot of information background investigation that would have been done had begun was had been when he was a crooked confidential source so much so that i agree that i believe they would have gone out to talk to this can't be gentle sorts and say hey what happened did you meet my client did you entice my client did you top to my client and other times be before my discharged when the director it does not it just says that when the agent reached out to him in july which would have been about sixty days after my client was arrested that is when he's they they they they could have but had they had this information before they would have been able to investigate it much more thoroughly they could have filed motions with the judge to turn over the details of his deactivation and not just a you know eight page line lin it's pretty apparent from the record like it's very you know it's very apparent that she is shocked because what makes it extraordinarily a buy a big story to near the worst is that not only was this witness the main witness the talked about what happened are viewed on this level as a player standard because it was not presented to the district court in a new trial motion while and appellate luckless attempting to argue three different grounds for our reversal only your honor i don't know if you can hear me but i believe i heard your question i would have to answer it if i didn't hear it correctly please interrupt me the new trial motion argued that the weight of the evidence did not support  that memorandum was reviewed in camera and judge show flat to your question there was a the if there is not a specific date that the c i said that he did the drug transaction but ministers as they pounds will was still on the stand he was the longest witness that testified on behalf of the government and at the conclusion of his direct examination defense counsel chose not to cross examine was given some time later the motion for mistrial was made of or the attraction was formally given to the jury i think that's of no moment here i don't think that makes it not an effective motion for mistrial but they didn't renew it even that's what they didn't argue that specifically in fact defense counsel asked not for the curative instruction of the defense counsel wanted to put the witness back on the stand and go through  testimony so it under the circumstances particularly when you have the defendant testified and virtually everything that agent balance will attest to i doubt anything of critical factor i e the definitions of at that point in time the fact that the defendant testified this the evidence in this case is substantial it is overwhelming is telephone and meetings fully recorded corroborated by the on site observations of sub several surveillance witnesses and then the defendant admitted every act that is necessary in this case with the exception of quantity of the drugs he tried to dispute that and why he was several points and i want to me number one as to our st point while it is true that we don't know exactly when this double dealing occurred it is clear that it is happening either right after a contemporaneous to what is going on in this case we strongly disagree that the evidence and he says is overwhelming the evidence in this case is only dependent on the well yes judge to a certain degree but there's also things that my client has to buy to as to his kind get with his content with the confidential source that is not recorded that that is much more likely to have heard because the conduct the business confidential source i do not agree that the testimony of the st two witnesses would have been void of any conversation or any true is it true that the brady issue was not raised in the motion for new trial judge our position is because it talked about the weight of the evidence and it over and it asked for a new trial it covered everything that happened in the trial when will we will concede to the fact that it wasn't specifically mentioned by the attorneys involved in the case but it was definitely was an issue at the trial my position is that because it's an in and general brady  the prosecutor would have been asked a direct question and hopefully he would have then disclosed that instead he sat on this information went to hearing after hearing on this case and never told the defense this crucial information  this with an intentional brady by omission it materially becton the results of the trial and we believe that the entire trial would have been different had this information been provided to them  no ma'am no it was absolutely nothing the judge as a matter of fact he fine the defense's request to disclose the actual memo and the judge when she heard the facts only turned over that memo to the defense so even the judge and the judge and it's important and i quoted it to read what the judge said the judge said that this is a crucial witness that this defendant what judge i know that we must show that the results of the trial was a probability that they would have been different and i think that structural error limit great cost unfortunately i did a thorough search and i was unable to find anything on that but because of the special care that the courts are taking now with violations of brady and because i have read article after article that indicate that a large number of wrongful convictions are based on prosecutors intentionally withholding brady i think this court should be especially concerned with the behavior and how that behavior of