right thank you good morning may it please the court i'm on behalf of the plaintiffs and i'd like to reserve three minutes for a bottle three yes thank you and i hope to focus on two issues this morning i'd like to talk about the district courts flawed assumption permeating all of its rulings below where the court erroneous only rony asli held that even if operation turnaround was a sham and even if the defendants were full participants in the wider investigations charade that any fraud or that occurred during the wider investigation was somehow not relevant to these plaintiffs fourth amendment and brady claims and i'd also like to talk about the discovery misrepresentation that happened below at a minimum the summary judgment ruling should be vacated because all of pla strategic decisions all of plaintiff's arguments and all the district court's rulings were based on a serious misrepresentation of the record beginning with the district court holding about about the wider investigation  the district court found that defendants fraud or bolstering of the confidential source in operation turn around in general is somehow not relevant to the probable cause question or that it was only relevant the defendant's kind of was only relevant to the extent that they corroborated their source during the wider investigation but it was not relevant when they found out that their source was lying they found out that their source was framing people they found out that their source was dealing his own drugs on the side was stealing money from the government during that investigation  one thing that we know is that probable cause in the case against these plaintiffs relied on the defendants believing their confidential source the government already conceded that fact when the government moved to vacate the convictions of these plaintiffs the government in its motion informed the court these these cases defended on the reliance of this confidential source he has no reliability he's completely untrustworthy and they vacated the convictions and they they moved to dismiss that indictment and i don't think there's any dispute that we've at least provided evidence that confidential source was routinely stealing lying framing people stealing his own drugs there's a tremendous amount of evidence that's been produced and that fact we've also produced a dispute that the defendants were aware of this and that they helped tide it and that's all of the evidence that you see below about the stand in impersonators and they were terrible stand impersonators they were sometimes the same standard would would pose for several different suspects you had stand ins who looked nothing like the person they were supposedly impersonating you had doctoring of audio transco or audio recordings you had modifications of transcripts to cover for when the source screwed up or when the imposer screwed up when they referred themselves in the third person or when the real dealers name was mentioned you'd have the transcripts altered you had false reporting going on where they would omit a detective who was there who said that the suspect was being misidentified or they would add a detective to bolster the identification even when that detective wasn't there and you had false affidavits and testimony so where they erred just a court's error happened is that the district court held that even if the confidential source was wholly compromised and was framing and stealing that that isn't relevant to the question of probable cause and that error is that ruling is eroni it's because there's no way that the defendants could earth lease there's certainly a dispute effect a jury could find that the defendants were feigning reliance on their confidential source and that there was no probable cause here question made i don't think you can't go about this in argument because you'd never be able to accomplish it this is a question generally  approach this cat obviously there's plenty of evidence this record very egregious impropriety in wrongdoing in the investigation but when we look at this knew this indictment is dependent on what our sources told us our source claimed to have a drug deal with this particular suspect and in the back of their minds they also know and this source is framing people left and right and we are helping him in a lot of ways to frame people left and right and so it doesn't really matter whether these particular plaintiffs were guilty it doesn't really matter whether these particular defendants had their misdeeds in this particular transaction if they had a conspiracy to prop up a false informant through an entire investigation from you know from the first transaction almost to the last transaction that might that might be true with respect to your conspiracy why but with respect to your individual climbs you still gotta look at each pioneer and age when you absolutely do but with regard to each plaintive they're all dependent on you have to believe this source and we know that like i said the government conceded that in the criminal matter you have to be able to believe this source because that's what the basis of each of these criminal cases is dependent on and they knew that their source was false so each individual plaintive they know that in addition to sleep we do have a strong conspiracy claim here as well but you know i i don't think that's the only approach that works here i think that both approaches are strong and in both approaches because every single indictment issued was dependent on  the confidential source being reliable and the defendant knew that he wasn't you'd be hard pressed to find more egregious facts we've certainly we've certainly created to dispute effect on that issue before i turn to the discovery issue i do want to briefly say something about the f t c a claim preclusion under all of this and that is just in light of the deceptions with regard to the record which i'll talk about next the plaintiffs do intend to file a rule sixty motion when restored to the district court and that motion would be futile without this court's holding that the conduct an operation turnaround in general is relevant to plaintiff's malicious prosecution claim i mean our position here really turns on that the evidence throughout the wider investigation is relevant to these plaintiffs not because the plaintiffs are trying to steal other people's due process violations but because those due process violations are applied to these particular plaintiffs because they were indicted based on an informant that everybody knew was when you're examining a search warrant affidavit and there's an allegation that there's false statements and that one of the things you look at is if you discount the faults they would you still have probable cause so at least as to some of these people it seems to me that kind of analysis has to billion dollars to well that's a fair point judge guy except that the officers were all involved and i go to great lengths at the brief through the briefs to explain how just maybe lucas participated in this particular transaction but lucas also participated in the joshua webb won it in close proximity where he falsely identified a standon and lucas also was changing transcripts in order to cover for slip ups and so yes there were other officers sometimes involved in corroborating that that's where all the evidence of what their misdeeds were throughout the corroboration in the wider investigation become so important the things they were supposedly doing to corroborate their source were things that they were routinely using in order to hide their standard i mean it's it's a little different from officers at it in the making without a warrant that's correct and that's a dressed with extensive case law in the briefs i mean the the omissions in the reports the false reports throughout this case are what formed the basis underlying the the false indictments i mean you had lucas testifying falsely and you had all of that this whole thing was a house of cards  all of the reporting around bray was propping him up as if he was some reliable source that everybody could count on when all of the officers were winking and looking the other way or affirmatively hiding the things that this source was doing to frame people with regularity turning briefly because i see i'm almost out of time here to the discovery issue i'd also like to point out the defendants back the plaintiffs into a corner here by seriously misrepresenting the record and they should not be rewarded for this tactic if nothing else we should have an opportunity to explore east explore the evidence that they said that they gave us and that they never did the each defendant has falsely informed the court that the entire internal files that all the investigative files that all of the video and a recordings were given they made that representation below they've made it twice to this court and they made it a bunch of times and numerous parallel actions and now thousands of pages later thirty eight cd rom's of recordings later we learn that that's not true we now know there are  large categories of documents that they never tendered that would fall within the category of what they claim to have given us there are five categories of da forms that would show the payment records which we were using when we we would use to show that this informant was stealing because there were often discrepancies between what he was given and what he claimed to be giving back we learned there's a da confidential source file that we've never seen that there were handwritten notes of witness interviews and surveillance notes that they required to keep under the d a we've never seen that lucas had operational plans and that's really important because what the defendants were doing was they were changing the facts afterward so if you knew who was supposed to be there beforehand you can cross reference that to the d a six about who supposedly corroborated the source after and that's where you find these kinds of discrepancies cross referencing has been the key to finding much of the misdeeds in this case and so these huge categories of documents that we've never received  are really relevant and we also have a bunch of discovery that we received after the fact and summary judgment that was never considered by the court below you wish to address briefly the miss than sure does the court have a particular question discovery have heard us we think we'd ask that that be read that we've asked for all of it to be reversed or at minimum vacated for an opportunity or discount for discovery that piece of it didn't have it didn't have sufficient discovery to from the department of justice on behalf of the united states and federal officials robert cross and thomas for highly judge givens you are correct to note at the beginning that in order to defeat a properly submitted motion for s judgment based on qualified immunity the plaintiff has to show how each of the defendants violated each of the plainest rights and the district court here correctly held that the plants cannot make that showing with respect to the federal officials i represent mr highly in process first of all the record is clear that neither of those individuals was involved materially in the drug buys that led to these defendants arrests they did not identify these individuals they also did not participate in the drafting of the arrest warrants or the decision to prosecute they did not testify before the grand jury they did not have any meaningful involvement in the decision to prosecute not only that judge darrelle brain never claimed that he set up any of these plaintiffs and he never identified very highly or crosses as having worked with him at any time and in fact  i won't get into the facts of this this is a cesspool of corruption that is existing here in this community what i'm concerned about is the climate under which the district judge made his ruling continually referring to the finances they were guilty they were guilty they were guilty you know the three of us have all been trial judges and we know the influence of the trial judges but what concerns me is the climate that existed so for the court to continue to say you're guilty you're guilty you guilty disturbs me quite a bit i understand your honor i think it's important to note that the district court made those references to the plaintiff's guilt in response to the issue about whether the there was probable cause to indict or arrest them and that that would defeat their claim but very highly and cross their arguments based on it and here is a different argument and the district court in addressing this argument  already meant didn't address didn't rely on the plaintiff's guilt but the district court said of us even apart from whether the plaintiff supplied guilty to this or not they still have to show that each defendant did something and participated to violate their rights and when you  stablish day and a different point in time so the district courts use digital staffel could be fairly attached on that basis correct well the united in fact the united states and riley in cross have not defended the district court's reliance on judicial software for the reasons that you've said but again the arguments are independent of that again the plaintiffs have to show that for highly uncross violated their rights and they can't show that on this record in fact the record shows that the front of the crossword v a officials the da wasn't even involved in this investigation the time three of these plaintiffs of their drug buys occurred that's spiers matthews and brooks the were never explained how somehow her highly uncross could be responsible for those violations and again i think that's sort of emblematic of the entire position they've taken in the case i'm almost out of time but i have to do want to address first the judgment for the f t c as judgments are bars all the claims against the federal defendants because there's been a judgment on the f t c a claim the plaintiffs waived any appeal of that by not addressing it at all in their opening brief and then finally i wan something about this nervousness representation claim and that's that is completely disingenuous because as we've showed in our motion papers it's been clear to the district courts and to the plain of us from the very beginning when the united states turned over the documents  question what those documents were and that contemporaneous records the protective order notices say what they are they are the all of the trial testimony in the lucas criminal trial and all the exhibits in that trial and that's what we turned over and that's what told them they were getting now what happened was when the district court wrote its opinion it picked it describe those documents by referring to the lucas trial exhibit list which we've given you in our motion papers and those those that exhibit list does  these documents because one thing the legal issue they say they're pursuing here isn't dependent on what happens with those documents at all i've never i don't understand that either so the proper remedy if you don't just and i the motion for the reasons we stated in our brief first of all is improperly presented and it's been waived so i'm out of time here on you can honors my name is dan downie i'm here on behalf of ridgeland county and captain faith and sergeant mayer and with the exception of judge guy's question earlier plaintiff appellants counsel did not mention my clients a great deal touring oral argument and i would submit to the court that that was also the case with respect to the brief that was filed in this case in reality there is nothing no evidence in the record of this case suggesting that my client's captive faith or sergeant mayor did anything improper throughout the course of this investigation started the investigation started in attempting to solve a murder and not in attempting to round up twenty five suspects involved in drug activity there was a murder in december of two thousand had provided reasonable and useful information with respect to a breaking and entering he was signed up as a confidential informant and drug buys were undertaken in an effort to resolve this murder and most of the drug by siddur issue in this case occurred prior to d a involved with the d a did not become involved and so after a usage of mr bray in cleveland where they obtained evidence with respect to drug dealer there and mr lucas and various members of the task force came down in late august early september depending on whose recollection you believe and took part in the robertson by the love it by and  one issue with respect to jason westerfield but otherwise all those pies were good buys and when judge nugent says they were guilty and obviously that's not average that i used either i think what he's really saying is there was saying that as i read his opinion i reached just as i looked at it that the district court seems to a forgotten that the government itself initiated particular page and in my view there was i don't want to interpret the judge's opinion but i'm just speaking about the climate that exists when you have the trial court having that type of  attitude and you know your honor what i would direct you to would be the analysis of the court entered into with respect to probable cause with respect to false arrest with respect to malicious prosecution my clients played no role with respect to the prosecution of these gentlem they made by they used brae they corroborated the drug buys as they're required to do with respect to six circuit precedent when mr bray was being controlled by them they made controlled calls they searched him they fall the vehicle to the by scene the attempted to put eyes on the transaction they followed him back and they briefed him and the things that they did are consistent with six circuit precedent for finding somebody to be providing reliable information my clients were not consulted with respect to the grand jury proceedings did not take part in my clients were not called this by u s attorney serrano to provide them with information prior to the grand jury proceedings  not testify in any criminal trial obviously in this case the six that we have here there were no trials and i think you know with respect to how judge doujin saw the case certainly he came forward with argument we did not make that argument before his court but i would submit to the court that there is no underlying constitutional right that's been violated with respect to these six individuals and there's been still no statement by  parents counsel with respect to how any of the individual defendants in this case did anything that was constitutionally improper with spec to their particular clients in fact it is evidence i believe this quirk of good sitter that each case found that there was probable cause to arrest these folks and prosecute he also found that my clients were involved in the prosecution of these individuals and i would also submit to the court that with all due respect to the palace counsel that other judges that have addressed some of the factual issues that has been raised in their brief with respect to roseville williams for instance who claims he was not present the by this summary judge was granted by the trial judge who heard all the evidence in the case and that case was never appealed to the six circuit it's a final judgment and so i would submit that you know at the trial court level the judges that have largely addressed these cases of all come to the conclusion that none of these officers may have police a court done thomas roth and i represent mr lucas  i would like to address something that your honor judge keith said and you asked question weren't the the police compromised i think what you have to do is you have to look at the context under which the united states attorney's office from cleveland decided to dismiss not only individual cases but all of the mansfield cases there were about three or four and i i i tried the criminal case on behalf of mr lucas so i've been involved in this matter for a very very long time and the initial problems with the cases were not these cases there's never been any suggestion that there was anything wrong with the convictions in these cases the problem cases where the neighbors case the geneva france case the wesco ballard case and a few others the the cleveland united states attorney's office properly in my view looked at what mr bray had done in those cases and said we just don't want to deal with this man anymore we think that what he did in those cases taints this entire proceeding to the point where we're going to dismiss them all we're not going to do it piecemeal we're going to do it all never was there any suggestion by the government that the admissions or the guilty pleas by these plaintiffs were in any way compromised as a matter of fact the united states attorney's office and its papers to the judge seeking dismissal indicated that very clearly some of these people are clearly guilty we have no doubt of their guilt as a matter of fact they pleaded guilty so we're not saying we're not making any claim other than that we do not want to deal with this informant mr bray anymore he's so bad anything that he's touched we're dismissing that was the basis it's also important to understand the admissions that both the government and mr bray made at lucas is criminal trial mr bray early on in his cooperation with the government ma all sorts of false allegations against mr bray and other individual defendants in this case suggesting that they were all in cahoots with him in his deceptions by the time mr lucas was indicted the government had learned that none of that was true now mr lucas was indicted in any event but at the lucas trial mr bray took the witness stand and admitted that he acted completely alone in all of his the steps deceptions in his use of stand ins in his use of his own drugs when he stole money how you know mr bray hot it's also made that admission in its opening statement in its closing statement they admitted that mr lucas neither knew about nor participated in any of mr brace  and that was and the only point i want to make your honor is that whatever the government still has to trial they didn't provide a lot of it right he was acquitted but they had they had other theories their theory at the trial was not the theory that point of shoes here and that mr lucas was involved in a conspiracy with mr brady because nobody says that there's no evidence at all of that at all anywhere in terms of the discovery since i was involved in the criminal case i know about the discovery in discovery we submitted as exhibits in the lucas criminal trial the entire files of the united states attorney's office richland county prosecutor's office and d n a they were on consent they were submitted into evidence at the lucas criminal trial and they were part of a an exhaustive exhibit l should go to the jury in this case on the issue of qualified immunity yes or all right well if lucas wasn't even involved with in any of the transactions  involved in september of two thousand and five all of the transactions for three of these defendants mr mathews mr brooks and mr spiers all occurred substantially before the e a even got involved so none of and it's also important that none of these plaintiffs are alleging fabrication of evidence asked to them at all what they're doing is they want to say oh there was fabrication of evidence mr bra said against neighbors we want to borrow that there was fabrication of evidence against mr ballard let us borrow that there was fabrication of evidence against geneva france let us borrow that because they don't have any fabrication of evidence or any is just keep started out this was a cesspool of corruption and it wasn't just one informant one informant was law enforcement too we've at least created dispute a fact of that and the government's concessions regarding that point what  principal argument that you agreed to each point to each these are consolidated appeals elec knowledge it but if you look at the standard for malicious prosecution at the time of the defendant misdeeds was it clearly established that playing a can't benefit from malicious prosecution i agree with that our theory of the case is that defendants fabricated forget forget that there are these other plaintiffs out there defendants fabricated reliability of a confidential source or over time they had this wide investigation forgetting that these other suspects are also plaintiffs did this why did must again where they invented of  a confidential source as if he could be reliable and they doctored transcripts and they made false reports in order to build out of nothing this reliable confidential source and so when it came time to initiate charges against these plaintiffs they knew there was no probable cause they knew that they had this fake informant who was framing people left and right and yeah we're not sure which ones he's framed which ones he hasn't but we know that he's mostly framing and we're going to pretend like we can rely upon i break down what each one's misconduct does i don't feel i have the time to do that here but each one of them has fully participated each of the defendants is fully participated in falsely bolstering this informant while some of them were changing the transcript other of them were false reporting some of them were were lying to the prosecutors some of them were doctoring the audio transcripts but i go very carefully i don't try and just lump them all and it's one my brief goes very key explaining each defendant's misconduct how they were grangers finding of probable cause rises or it's really based on the truthfulness of mr lucas in his grand jury testimony i think i don't see how you get to benefit from everybody else involvement with respect to the finding of probable cause well both under the conspiracy theory and also under psychs i think what psychs says is that when the when they influence the decision and i think that all of these guys working together to bolster a false informant participated in that influencing of the decision to prosecute may have dissipated in the broader corruption but it's pretty hard to be any evidence that any of them directly on sorry hadn't hidden the fact that their thought their source was stealing government fund if faith hadn't hidden the fact that they were stealing government funds if matt kept on him the fact that they were framing in the roosevelt williams case in the neighbor's case i think if you look at each of their conduct there's no way the if the prosecutor knew any of the things that these defendants were hiding there's no way this prosecution would have gone forward and that's what you saw in the criminal case when they vacated it all ok so respectfully we asked that summary judgment