no i have not listened to the entire tape that's the words of the prosecutor as to the tape that was introduced and by listen of course it's in arabic it means three that the english translation the transcript that's just an example as to one tape that was introduced in evidence the record clearly shows the worth thousands of tapes in this case due to the feisty wiretap the government has not as much as a listen to those tapes to make a greater determination that's one of the threshold issues in this case is how in the world could counsel for my client properly defend my client if the government had met his father gave them the brady and then likewise under the simple doctrine my client did not have access to classified classified information that the attorney got his secret clearance reviewed the information my client was not entitled to it the government has not as much as attempted to respond to either one of these issues brady and said in a response brief thus they waive done of all the tapes and they take the position that they satisfy their brady well i don't know what position they take since they didn't respond to brady and the response play so i'm assuming they take the position that well s of if you look at the transcript and i have and i've stated from that transcript in part of page two of my reply brief you see what i've called a cavalier attitude they're saying we don't even have to review the entire tape that were entered juicing other than the fact that he didn't say anything on a problem in that form and statement on either side there's nothing in the record that was support that position or are you and that's not the position we're taking we're taking the position that as i said in my reply the government made its bed and must lie in it the government decided suit to conduct this wiretap operation for a year and a half they can't willy nilly doctrine says they have the obligation to review under brady all the evidence that they've collected that's the that's the simplest issue in the case i think that's the one that that's it's a tip of the iceberg yes everything else is going on here but it seems it's the simplest one that the court needs to decide do they have an obligation to review all these tapes whether english arabic or any other language the same as any documents and i think they've got this cavalier attitude that well we don't have time for that the record makes clear that they collected thousands they didn't prepare even summaries and i would challenge counsel when he comes up here to explain to the court how many they've collected which ones they every raised two issues in this case and of course i need to talk about the new case that has been decided and on bond heredia but before i do that i just want to give a little factual background very it to one of these warehouseman and that's the factual pattern in this case now the two issues that have been raised by myself on his behalf are the jewel instruction issue and also the motion to sever issue he knew he was taking stolen goods and putting in part of the conspiracy so even if they were what difference it makes that's a very good question and the difference i think is this and i am answering your question number i and you may have just put this into your question it was inappropriate i think because the posture of this case was my client either if you shoplift you either confession he said that yes i shoplifted but fifty percent of the stuff that i stole the baby formula that i sold was in fact shoplifting baby formula the other was not now in terms of what difference does  this whole thing make it seems to me your honor that under the facts of this case that because this instruction was so confusing in this regard that the jury may have ignored the fact that some of the items that he was so that he sold in fact may have not been stolen property and it may be because of the way that the instruction is worded that maybe  fact what happened here was the jurors felt that he was being deliberately ignorant of what was going on not just in terms of him selling he himself selling this stuff and i guess maybe it wasn't aired all after the opening brief was filed and i want to make that point clear thank one other point i want to make and that is i realize what the holding is now and ready and i'm not going to repeat it all because i know you're all very familiar with it but i want to make it clear that my arguments that have been made here including the ones about that there's really a lesser burden if you will placed on the government i want those arguments to to remain i realize that this court can't do anything about it because of the decision there everything you've put in writing is preserved all right thank you the other issue the other issue that was raised by myself of course was the motion to sever and it's  that i think i've been very specific about what went on there and i know that one of the other counsel is going to specifically discover it discuss that issue with you thank you thank you ms hamilton good morning my name is mrs hamilton and i'm an attorney from phoenix also and i represent appellant moll i'm going to be submitting mr alterman it's case based on the written records before you already but i would like to discuss just very briefly one issue that i found particularly interesting and that was the motion to sever argument i frankly feel that judge mark stone although a first rate judge did err in this case in not granting the pretrial motions  allegedly made by mr al rawi and alleging other prior criminal acts on mr jamal but the most important issue that i'd like to focus on was the problems presented by mr trial counsel mr cavanaugh now we understand that rule fourteen that's a very high bar for severance during a trial and that would be demonstrably all prejudice in this particular matter we're claiming error not merely because mr cavanaugh co counsel for presentation of evidence would say something like that's the stupidest thing i've ever heard you don't often see that in a record or you don't often see the usa who's just about to have a stroke and a heart attack because he knows that the defense attorney is mind here mr camp who also had a few a few things to say about about the fact that mr cavanaugh wanted to bring in evidence about nine one one and wanted to bring in evidence about terrorism and i wanted to ask he questions about our clients related to the hijackers from nine one one and everybody just having a think when he's talking about this and that's just one small example this fellow didn't have a clue he should have been doing a case of this magnitude  legitimate wholesale business selling computer consumer products at home and abroad although there was some evidence that he knew jamal but there was no evidence that linked el gamal or daily with to introduce evidence of unrelated allegedly texas where house burglary burglaries that mr l rodway was implicated in these were prior bad acts which were precluded by none of the criteria first the evidence was unreliable it was presented mainly through snitch witnesses who had benefited from pleiku plea agreements with the government texas warehouse burglaries and although he uncovered evidence regarding the snitch witnesses garcia rodrigues rodriguez who had been under surveillance for like the period he never observed l l  they contain pellets of jeans per fume imitation brand clothing sunglasses aftermarket watches and other items but only a half pallet of baby formula detective merritt sorted he had no idea where these items came from he could not attest that they were stolen and none of the goods were confiscated this being stolen despite two separate searches and ultimately american seated rob way was indeed in the business of legitimate wholesaling offer no concrete evidence of his involvement in the burglary case secondly the evidence should have been school excluded because the incidents were sufficiently not factually similar to the case at bar here the government stressed that this case was only about baby formula not about anything else yet the texas burglaries involved stolen goods primarily clothing goods cigarettes and not  not very small amount and the amount and the evidence linking the baby formula was mainly proffered by the snitch witnesses who gave remote testimony that many years texas burglaries were not similar in modus operandi to the baby for baby formula thefts which were primarily perpetrated by small level shoplifters resold formula wholesalers and the evidence regarding the baby formula theft was that shoplifters entered individual stores with tubs and strolled into the tool cans and then resold to otherwise thank you ok mr grant good morning please the court having rap on behalf of the united states i will begin with the severance issue counsel has not demonstrated a manifest prejudice in this case that would require a separate trial for any of these defendants i will address some of the points that that counsel have made they have argued that a defense counsel trial counsel for jamal was ineffective and this is not the appropriate forum to discuss or urge that type of argument we frankly do not know why trial took the strategy that he did in this case it is that i don't understand the question is whether what he did the girl is a rush and whether it had and first impact on great stress and prejudice by the incompetence of another counsel why isn't what possible reason could he give that would mitigate  that he attempted to interject terrorism into this trial he wanted to question a witness about a statement that involved terrorism the judge didn't allow him to do that  when he was going to put his client on the stand the government and wanted to make sure that the his client was advised not to make statements regarding terrorism his client alternately did not the one situation that the defense is referring to is a question he asked of a government witness regarding nine eleven and if the court looks at the transcript s c r one seventy eight he does ask this witness is that was the climate charged because it was nine eleven and if you look at the witnesses answers in the witnesses named was your sama a coup the witness said i don't understand what you're talking about and then when he presses and he says well that wasn't the reason the climate was charged that was one of the issues that the defense attorneys had with m cavanaugh performance but what we do know from the record is mr cavanagh filed more pretrial motions than any other defense attorney in this case he and from trial counsel's viewpoint he cross examined each of the government witnesses extensively he put on sixteen witnesses in his defense of his client the other counsel put on zero we don't know why he made strategic decisions in this case and the record in the government's view is not fully developed to address that with respect to the the other issues of severance at every point when there was a piece of  evidence that applied to one defendant and not the others the district court judge gave a diligent and repeated instruction advising the jury to compartmentalise the  evidence and if you look at the jury verdict in this case they did a quick on three counts of this was a jury that was looking at this evidence with respect to exhibit four sixty three which the the defense has argued extensively in their briefs this was a piece of evidence that was extensively litigated out of the presence of the jury at s e r four ninety four through five zero eight defense counsel for jamal was arguing that there was both a brady material that was not contained within the conversation judge reimer was referring to the four minutes on either side of the conversation that was provided there was no evidence that was brady in that he also argued the rule of completeness and this was a lengthy discussion fourteen pages of transcript then the government attorney played this fourteen minute tape and at various points during the plane of the state interposing objections to its and miss ability it was a relevant conversation was relevant as to jim all the district court judge advised the jury that this this piece of evidence was only supposed to be  considered as to defendants in mall during the course of that conversation there was no indications of terrorism there was no anti government sentiment yes there were middle eastern countries that were mentioned syria lebannon iraq but only within the context of countries that you mall i desired to do business and with respect to the accuracy of this tape because there was much litigation and the these defenses raise that in their brief the defense's own witness who was a party to this conversation this was a small sum cari it s e r five fifty eight he testified that the piece of the transcript that the government was admitting had admitted at that point into evidence was ninety eight percent accurate if this was harmless because the evidence in this case was overwhelming with respect to the issue of jury misconduct there was no abuse of discretion this was misconduct that came before all the closings were completed it involved a who other counsel complained about him being deficient in his presentation in this case was the only attorney who actually became cleared and listened and reviewed those summaries he had those summaries available to him the government was not going to substitute their brady judgment for here so we had them available to him read all of the tapes transcribed and summarize for some were all of  yet not in the three other attorneys did not get cleared in this case and so it was mr cavanagh who immediately had to come to the united states attorney's office because of the sensitivity of the information and ha that available to him but on top of that the government had agents in the gut of the agents who were supervising this particular pfizer were instructed that anything that was even remotely relevant to  baby formula was to be summarized and that information was brought to the u s attorney's office where we had an analyst go through all of those summaries and flagged those again that were even remotely that even received the word infant formula and and government attorneys sat down with that analysts and explained to them the difference between exculpatory in inculpatory information then the two trial counsel on the case went through those flags and determine if there was any brady material the government understood its obligation and if there was brady material it would have been disclosed to the defense counsel getting back to the jury misconduct issue as the court noted that the juror that had the information became an alternate was not part of the deliberation the information which is discovered  at before the the jury engaged in deliberations the actual information itself as the district court noted was although not admissible was cumulative in this particular case it spanned seven or eight weeks there were no less than eight cooperating defendants who took the stand many of them had entered plea agreements in on this indictment or had enter plea agreements on activities related to this particular case so in the final analysis that information was cumulative and again as to all four of these defendants the evidence was overwhelming and the government  the district court made available the opportunity for a hearing each from the hearing from each one of these jurors or some type of like deer of the jurors and none no trial counsel veil them themselves of that with respect to the deliberate ignorance instruction as it applies to defend it daily if it if it shouldn't have been applied it was harmless in this case given the fact that the evidence of his involvement in this conspiracy is overwhelming it is true that he was a shoplifter but he was an important and critical fark of this conspiracy indeed during the course of th disclaimers but also that was what was important about defending daley was he'd actually supply formula to both sami jamal in tempe arizona and new moon alger mall and garden grove california had received checks and money from them and indeed in the case of damage a mall he had received no less than seventy one thousand dollars in check to do be sure to  p texas burglary i will your honor there was clear evidence to establish that defendant l rahway had been engaged in these  prior acts where he was directing rodriguez and garcia to burglarize these warehouses and it is true that some of these warehouses did not involve the infant formula  but it they did involve stolen products in garcia and roderick rodriguez testified to that extensionally what their business was they took direction from al rawi he told them in many cases what warehouses to burglarize because he had some inside information and they did that they brought the stolen products back to him and while they were doing that they observed the whole infant formula team going on shoplifters delivering the infant formula there was one occasion when i'll run away directed rodrigues to burglarize a warehouse filled with them from formula it was not in an consequential amount of in from formula estimated that there was proximately forty thousand dollars worth of formula is there any evidence that any of that activity was focused on formular just throwing good general well would trial counsel it demonstrated mr l wrong ways knowledge of stolen property stolen property generally or baby formula welp stolen property generally and also part of the warehouse burglaries involved infant formula and indeed garcia who he directed to steal a variety of items infant formula and directed him to steal infant formula no he did television set the acts that were charged as part of the trial involved memory tape with respect to the other defendants there was a limited instruction about this information  evidence and it was admitted but but this was a situation where the defense attorney had opened the door to that type of evidence if i may have just a few minutes to sum up unless there were any further questions from the court with respect to the those incidents where the poor the jury was instructed not to consider the district court in this case repeatedly carefully and diligently causing the jury to consider that evidence only as to a particular defendant and there was no abuse of discretion with respect to jury misconduct that happened before deliberation the jury was immediately instructed not to consider that juror did not participate did not participate in the deliberations and ultimately that information was cumulative there was overwhelming evidence in this case as to all four defendants the jury followed the instructions evidence by either acquittal on three counts in this case which means that they really looked at this the evidence in this case and weighed it i have nothing further ok thank you very much all of you with your argument a matter just argued