ok mr jones i pronounced your client's name should live but it might be should leave can you tell us which is right it's dr sridevi surely if she levy levy our record i didn't even guess on that one you got the jones part right so that's good  may please the court my name is william jones and i represent appellant dr paul sleeving in this matter this twenty two fifty five motion is so all that i actually have an opportunity to have brought my client with me and he's also in the gallery the order granting  certificate of appeal ability in this matter really demonstrates the core problem in this matter and that is that the district court failed to follow the instruction given by this court on remand more specifically the court instructed the district court to address the nullification issue asking them to determine whether or not the videotape had been improperly disclosed prior to the suppression hearing i thought it was made available before the suppression here not right well than it was made available but that that offer was nullified by statements made by case agent who said but there's nothing on it and so we're relying upon case law that indicates that that knowledge can be nullified and knowledge of a tape can't be used to indicate proper disclosure  process if he had the opportunity to use that tape in his presentation on the suppression issue his fourth amendment argument every time you get sent back down to the district court they make a similar scene as you as well it didn't affect the trial because well the prosecutor could instruct his agent not to misrepresent what's on the tape when it gets disclosed that's the problem because the his his attorney attorney cod relied on that in not viewing a four hour videotape as it's not on there and look at the evidence at the video two prior to the suppression motion hearing and we know that based upon there was an actually an exchange at trial you remember we talked about this videotape and that's in the government's opposition brief in this case the actual but it's also part of the record is the transcript of the trial you remember we you know as an agent ruth do you remember we sat down and you gave me all the evidence as the you know the controlling case agent on behalf of the u s attorney's office yes i remember and he claimed well we started to watch it and then i said i'd just send you a copy of it at that time the attorney says we know you didn't we didn't watch that tape and so there is obviously evidence of that meeting and a discussion about the you know the tape strongly suggests that there was some indication that dissuaded him from bothering to watch it but even more compelling is if you look at the actual suppression hearing transcript this attorney stop as he can if he had had knowledge of the tape and seen the tape he could have doubled how long that that length was that there is no rational argument that he made some strategic decision not to view it he was it was nullified and his knowledge of the tape was nala fired because there's no other explanation why he would not have played that tape at the suppression or to demonstrate just how long it took also there are then then you move on to the second area of whether or not you know this this court asked the district court to determine is that tape material as a relates to the suppression issue was there material evidence on there again there is if you look at the blog the doctor sleeve you lays out after finally getting a chance to see the tape  in anticipation of the twenty two fifty five his first chance to really appear in this whole process and he states that there are there is evidence in there of a drug dog being directed into the truck not just using his plain smell to be drawn and there is evidence of law enforcement lowering a tailgate making it easier for a dog to and more instinctive to jump into that truck all in violation of his right  to be free from improper search and seizure so there is materiality in that tape that was also not addressed at the suppression hearing by no no rational explanation other than something had dissuaded that attorney from reviewing it and it comes from that meeting with the case agent who indicates that there's nothing on it so that that is the that is i think the crux of the violation and then there is a nother issue and that is it we're talking about brady material and there's case law of mention in the briefing at that is a cumulative approach so this brady material is a videotape but there are other things that that later videotape by the time of trial it was support provided to him two weeks before trial yet he did not renew the motion to suppress iran or i've now reviewed the videotape i have and i didn't know about it i want to read you on suppression hearing that's correct  certainly didn't watch it he even says so at trial no i did not watch the tape the implication is that he did not watch it because he had some reason not to watch it because we can rely on the presumption that in this happens a stric all the time where we can allow the presumption that he's a competent attorney and competent attorneys don't watch video unless there's been some nullification of his knowledge of that tape but you know how good is my point he had the opportunity for new and say i did not have this at the suppress hearing in make the bright a claim or whatever but say i now have new evidence that i would like to revisit the suppression hearing well that wasn't done that was not done but again he has been told there's nothing on the tape but that but the time of trial before the fact that it's not as if the government said we were wrong here's the tape you might want to watch it and you know i guess it does have more than just a couple minutes of the beginning on what standard we apply well i think typically you're going to review the factual findings or you know on some sort of use of discretion and an old application i think on the on the law but you've asked twice now for the district court or at least once pacifically to chime in on the facts and so i don't know how you could review their facts for abuse of discretion or seems some sort of you know significant you know lack of support when they did not do what was asked i feel that there is sufficient evidence in the record to conclude that it was improperly disclosed and i mentioned you know there was that exchange a trial the nonuse of the tape during the suppression hearing and the presumption that this is comp counsel as you do and in typical strickland in a stricken analysis and i think that there is ample evidence even though they didn't chime in they were given an opportunity they didn't to conclude that there is material evidence in this video because dr should be in his twenty two fifty five is very specific about what is in that tape and there's been no objection or challenge to any of the specific examples that he gives that i think are pretty that are that that arved very compelling describing a dog being directed into a vehicle to start sniffing around not doing that on planes small or in the tailgate other things that maybe are less obvious but i think also for instance the tape showing it being much longer than what was concluded by the judge at suppression hearing just based on testimony and i think it was about ten minutes well no it was more like twenty five you know things like that that could have been shown with specificity in the videotape had it been not kind of cast away by this attorney based on relying on honesty by this agent i should also mention i think what it was potentially a weaver issue of an argument that came up in the opposition brief in this case and that is for the first time the government has raised the issue that well hey there's no affidavit from dr shu levy's attorney that he had this meeting and he was told there was nothing on the tape well the that assertions been in the record in under this to twenty to fifty five for many years you know since the beginning and it's never been refuted it wasn't even refuted down in the district court i think it was october tw thirteen when priests were invited no and there is a say on by the way we we challenge that assertion that there is this meeting and nullification it's only now had that been raised earlier there would have been an opportunity perhaps to get an affidavit put in the record and  i point out that the original twenty fifty five was very lengthy i think there were thirteen issues or sixteen issues many affidavits were used in reply to allegations of well you know the record is insufficient but there was really nu this was never raised and you can't really say well that doctor should leave you who you know is in prison filing twenty to fifty five didn't just on his own trying to get an affidavit in support when it really was never a particularly raised or challenge the issue down below so  think the government in their opposition raise three issues i think that the certificate of appeal ability really has already ruled on that i mean i suppose that it's not a final ruling but that the issue of the questions of did the court error and feeling to find whether or not there was i proper disclosure well the answer is yes they didn't do that it was they were it was asked of them and it was not done did they feel the follow instructions to address specific examples raised by dr slepian as twenty to fifty five yes they did not address that they just i think they gave it short attention and denied appeal ability and unfortunately this court granted a few ability in the third issue did the district court feel the follow the instructions to consider materiality in favor ability yes the certificate of appeal ability their order granting appeal ability says that they did it and i think in the end the district court has had its opportunity to chime in as i say i think that they i can explain why there is very little response to that those specific requests but i think that the record is sufficient if the court is considerable maybe we'll send it back for them to do it again i would encourage to just consider if the record itself is sufficient to make a decision based on the twenty to fifty five and i think it is evident that there was improper disclosure of the videotape and evident that that tape is material at the stage of the suppression under smithy black the suppression analysis is what is important even though every time it's been addressed below there i said well like judge really indicates well they had a trial i know but fourth amendment applies when at the suppression motion to suppress evidence stage as well and that's where the focus should be and that pleas court this this court after the first dismissal remanded this case pacifically really for one thing contained in the remained and that was it was remanded for further to the specific instructions with respect to remain and the possibility that there might be other issues that the district court might determine ought to be addressed but the actual remained in the in the court's language was solely for the specifically what the prosecution said in regard to whether there's there was nothing on the tape or whatever your honor the there is nothing in the record that suggests the prosecution ever did that other than mr claim in his twenty two fifty five that was filed frankly several years after the first disclosure of the tape in fact there are things that suggest just the opposite what what what what position does that irrespective of what may be in the record in the u s or the question exactly as i'd put it but whether or not it's in the record what is the government's position today on what was said about the tape at the time it was made available you know if the government's position that mr cobb the defense counsel was advised of the existence of the videotape was offered a copy that according to agent ruth under in testimony under oath they watched the tape together and that a promise was made to get a copy of the take to mr cobb that's our position we the government vehemently denies that agent ruth would with or without the government's knowledge rep mis represent the contents of the type and all of the evidence suggests that he didn't there's not a shred of evidence that supports mr shelley rees late in the day claim that agent ruth would have done that this court has no  didn't watch it i told you i'd seen enough and that's it and at that point at the point of that conversation i was testimony at trial at one of that mr cobb had a copy of th he knew how long it was he knew what it contained and he didn't say at that point or but wait a minute not only did i not watch it but i didn't watch it because you misrepresented how long it was and what it contained simply disagreed about whether or not he had in fact watched it we also know from the record that at the at the suppression hearing where mr cobb had an opportunity to cross examine whose patrol vehicle produced the tape he didn't say a word to him about the mask about to take but he certainly didn't ask hey what's the deal with you given you producing a tape that stopped after twenty minutes  why did that happen and don't you agree that having taped the whole thing would have been benefit none of that came up none of that came up a truck where there's no question that two or three weeks before trial the defense had the tape in it portions of the tape were played of trial and the entire video was provided to the jury and there is not a work in the testimony suggesting that mr cobb was ever misrepresented  brought up in motion for a new trial and i'm sorry not not he continued to argue that he has to this person should be granted but not with respect to any deficiency in what he was told about type one brought up during trial one brought up in his motion for a new trial one of the appellate points had to do with the suppression should have been granted and yet even there there is nothing suggesting that mr cobb was ever misled with respect to the contents of that videotape  mr mr jones brought up well gee the the government has waived any argument that that that conversation didn't occur i respectfully disagree with that representation  number one it wasn't the government's job to disprove an unsubstantiated and i would suggest specious claim that mr sleazy came up with several trial until there was some evidence that in fact that claim had billet at the government didn't have any obligation with respect to time trying to disprove it but i would also suggest that if the court looks at the record from day one once that claim came up the government is taking the position of the videotape was properly disclosed and there was no misconduct on the part of the government or agent ruth now perhaps we could have said it more specifically to have better satisfied mr jones and his client but it's clear that our position is that didn't happen and the government does not and will never concede that that sort of thing happened mr jones brought up question materiality obviously a videotape that shows a traffic stop and the discovery of drugs is material that's a separate question from whether the videotape would have been favorable to mr sleazy in his motion to suppress and the government suggests there is nothing with respect what happened in the videotape that would have better enabled mistress levy to have presented his motion to suppress so what may have been material in the sense that it showed what happened it didn't show anything that would have benefited mr levy with respect to his motions for us or our obviously with respect to the trial either  that frankly sums up the government's argument yours and unless you have questions i'll see the rest not don thank you mr jackson mr jones you save time for both you your honor he's my rebuttal time to respond to the assertion that there is nothing on the record of improper disclosure and i respectfully disagree there is evidence that it's really not disputed that there was a meeting between ija ruth and dr slieve ease attorney there is also evidence that the videotape was cut short as far as it was not viewed and it was not handed over at that time prior to the suppression hearing there's also evidence that a copy was promised and not provided until after the suppression hearing there is the actual suppression hearing itself as i mention that had that videotape been known to demonstrate a great portion of the actual stop it would have been use and you can infer or really assess what rational tourney would not use that had  there were two videotapes one of them was destroyed that was taken up in other issues this videotape for reasons on explained has no audio when it finally gets to doctors levy's attorney this  was that testimony yes that is what nobody said can't defense counsel didn't i didn't object so that's not what happened that is what he said it he said no that is not what happened will agree to disagree at this point as we're in the middle of a trial and i'm we're in cross examining on other things it came from he came almost spontaneously said you remember we sat down to talk about evidence about the tape and he said yeah we sat down and we watch he was very quick just to say that no we didn't we didn't watch the tape sure we did in you watch a little of it he said i've seen enough and i promise to send you a copy i think that's it's a very short record i mean it's something that usually we don't have to work with at least they talked about it on the record but there is a discussion it's in the briefs i do know that he promised to get him a copy and he just never did until after the suppression hearing and there really you know as evidence there's just really no rational explanation why it's not two thousand and seventeen where you have digital video it's a lot easier to scan through is a four hour videotape and if you remember back in that then that does take a long time that is that is valuable time to take a fast forward through video if a cut of a police officer indicates that you know it's mostly stops that came before and then it ends and there's no you know whatever some indicator i think that there is ample evidence to conclude and you know i think that they do have an obligation to respond to the assertion that is compelling i think that dr shu levy was denied his right to due process at the suppression stage not this is not an analysis of well the tape was present at the trial so what's the big deal it didn't affect the outcome of the trial it did because he was he was denied material evidence that would have been used to suppress the evidence that was the primary evidence at trial and given that given that conclusion i feel that the court and would ask the court to vacate his sentence and remain and presumably if the if it's pursued there would have a suppression hearing the way it should have been which would have been with the use of the the stop  determination of whether his right to be free from unreasonable search and seizure had actually been infringed or thank you mr jones your case is under submission in the court