drug transactions on one particular day we discovered them this product shortly before or before this witness testified bill as a result we wanted an evidentiary hearing the defense wanted an evidentiary hearing presented before you go before you go there  call the girlfriend i did not call the girl for and i did you try were you preventatives away from doing that i had reason to believe that if i called the girlfriend she would have simply testified consistent with what tony myers testified to and that she would have testified she was responsible she was responsible for everything my point is that this new evidence would prove that all that was a lock and how to obtain a lie because there's new evidence which per if you give me something in return tony myers testify that's not me that was all damn right but then the next day before trial on on a different account which was exclusively tony myers other evidence that's pretty significant evidence of it not well if we look at it all together what do we have st of all it's not his fault it wasn't registered hair this phone was not registered as my client number two i think most it was a drug transaction that occurred in mr acquired this cause so with the government necessarily have to rely on mr meyers his testimony that hey he observed this transaction involving four hundred dollars worth of methamphetamine that the government was not involved in that the attempt at communication the government was not even aware of it until alerted by the facts we alerted and government before mr meyers testify by yaks instead of stand we're never going to have anything to do with mr meyers going forward in striking his testimony or saying you don't we only need him so we're not even in or some other way as the government continues to be you and rely on mr meyers testimony that there was this drug deal that occurred in his car i think a suggestion of the messages was that if some money was forthcoming maybe meyer's would not get behind that yes isn't the inference from that that if the sender of that message got something back from your client maybe incriminating witnesses would not appear that's what it was wasn't it is not the appropriate remedy and the rd assignment of error which relies on the young case right where there was misrepresentations made at trial the government became aware of them after the fact but still continued to didn't even ask the government to make her available for an interview correct oh yes we did she was available to testify this was looking that occurred right in the middle of trial she was available to testify for a number of reasons we chose and made a decision not to endorse her or color as a witness so you know you made the tactical decision not to put on a witness that might have shown the conspiracy that you're sort of alleging right well because we believe that she would have said there was no conspiracy we believe that she were taking the blame for everything and testify that she was responsible only one hundred percent of this message and twenty myers had nothing to do with it would have seems to support this claim that mr myers lied about that hence getting us into core for a new trial and that's gets to the rd assignment of error which is the judge no one applying the wrong being allowed to use the message in the new trial either mr meyers is not going to testify because the government promised that they would never use them again or if he does testify he would then necessarily need confronted with evidence that  contradicts any claim that he might make that he's not a facebook guy and doesn't use facebook and are really nothing to do with this message so you know the book the real heart your are about what this is all about is you we discovered that you wanted to investigate we were shut down all the way and then after the verdict we discovered new evidence it would have altered the strategy of how we would have examined this for a moment and we were deprived about a new trial this had nothing marty your honour's and may please the court michael moore going to the united states before addressing the defendant's substantive arguments i think it's important to take a step back and sort of recognize that the question of mr meyers credibility is really a complete sideshow the the defendant's guilt was overwhelmingly proven by the evidence completely independent of mr meyers testimony this was a controlled by in which the actual hand to hand was recorded on tape so there's simply no defense to this charge in fact that's it's quite interesting that defense argues completely ignore all the substantive evidence of guilt and indeed myers is substantive testimony about the transaction on april twenty four is completely corroborate so even if his credibility was completely demolished even if the jury completely ignored his testimony the evidence of guilt was overwhelming and you could just reject all of the defendant's arguments on that basis alone that this was just anything that happened was h deny doing that the defense has presented zero evidence zero to contradict mr myers testimony as just hawkins recognized they could have called the girlfriend they did but chose not to counsel's conceded that was a whatever it is their clients cross examination regarding gets grants all correct and not only was there cross examination the defense used that cross examine examination to argue that now that's i can't say that's misconduct that's and that's it an interpretation of the evidence but it's certainly not the only interpretation and especially considering that the only witness to testify to them flat out deny that he s speaking that nd test makers should not even be on the record and i'll explain why it was introduced as an exhibit to the motion for a new trial but it's not newly discovered evidence under the law clearly not it was in it was in the defendant's possession all along i'm sorry to defend it didn't bother to go look for it but he had he had it for two months never bothered to look for so it's not newly discovered and it goes to impeachment anyway so for that reason it's not we discovered so it's simply not evidence that's really relevant to the case at all the district judge was quite appropriate to discount it in the new trial motion because it didn't form a basis for an trial and the district judge certainly can't be faulted for not taking into account with respect to the misconduct claim because he wasn't presented with it at that time he only had the record he had so there's that on the substance again we're simply assuming the defense is a defense says we could have confronted him about it and he could have said i didn't send it that that's where we're at i have of course i'm sure this person my understanding is that the defense brought this information to the intention of the government is that that is correct and i assume after receiving that information someone from the government top to  talk to him when you got the response back the response was d i didn't send this it looks like it was my girlfriend is that a fair substance that's what mr meyer said an stewart said when she was interviewed as well was though from a student was that information provided to the defense before trial it wasn't provided before trial because this these messages were brought to the government's attention after the st trial day but that evening or the next morning they were once we learned about it we sent agents out to interview myers and the girlfriend and the next morning before trial starts we relayed the substance of those interviews to defense judge was quite correct that leaving aside that this was seeking continuance in the middle of trial which would of course required suspending the trial sending the jury home for who knows how long the defense was just fishing they didn't have any specific evidence that they wanted to speak that would be relevant to the question of guilt or innocence and they eat and even if they were trying to dig up more impeachment for mission that was purely speculative i mean the defense counsel even conceded to the district judge that we don't know if we get this information whether it's going to be helpful or not but we'd like to go look at well that's a pretty big factor for a district judge for a lot to to take into consideration when you're asking you to continue a trial for you to do some investigation the that in may and in all likelihood is not going to lead to anything ringback the information they want it was facebook records and cell tower data it's yet to this day i have not heard an explanation how either of those pieces of data would show you who sent the message though and you basically just on that fact alone it was permissible exercise of discretion not to to  continuance here and again there's no prejudice because they've got to make the argument they wanted through cross examination so they wouldn't maybe they've gotten more evidence to support that argument but didn't stop them from making it support of our motion to push for a new trial the government therefore has waived that claim because the trial court has already ruled on the merits and the citing that the new evidence was would be useless would not be helpful to th is a facebook users facebook and then be forced to explain why is he doing this the day after a message was sent to my client saying in do you want to win your trial me mcdonald's this is tony and the fire leader own knowledge about it and then later conceded on cross that he became aware of it but it was still debbie's fault that was enough to cause the prosecutor to say it's disturbing that he would lock if the judge was concerned that the motion to