way that we replied to the government's brief specifically when we look at the case of scott brettschneider we have a letter a letter that was not written by mr brettschneider a letter that was not authorized a letter that had zero effect on the outcome in determination that the government when it came to the admission of mr marshall into the art that program as we see it this year this particular case langu office in brooklyn and queens where they had tried for many years to determine or trap mr brettschneider in some kind of scheme for recantations confessions  innocence in cases and they simply couldn't get there when they couldn't get there the prosecutors decided that they had to get something they didn't vested their time their years their effort into ensuring that they got something to show for this now not more than two weeks ago attorney general barr spoke on constitution day about this very same thing dealing with eighteen u s c one thousand and one and specifically look at a prosecutor like any person can become overly invested in a case they spent years they've become so sure of the rightness of their cause that they decided this is what they have to do they have to have their pound of flesh for what's happened here now there's some very clear aspects number one the materiality issue of this letter there was zero materiality in fact so little materiality that the government changed their theory of prosecution during the nd some nation we go through an entire case the and looking at the materiality test that we've laid out the government's changes this theory right whether it did have some effect right now whether it was possibly capable in a vacuum of having some effect on someone this materiality test is wholly different when we look at this now even if we were to buy into that possibility of some effect the materiality was was not going to zero here the determination for mr marshall's admission to our doubt had already been denied prior to time and in fact when we look at this letter it outlines that yes mr marshall did have a drug problem that was based on two years earlier not when your earlier when we look at the specifics of his substance abuse that was found in any eastern or the northern district of new york that was testified to by multiple attorneys there's no dispute that mr marshall had some kind of drug and alcohol program issue that was addressed by mr mohamed then the question becomes what effect does have now the government chose not to put on witness the witness who actually received this letter and was going to take some determination based on this letter they chose not to put them on so we ha no way of knowing what effect if any this had on the government as far as time to even talk right that's the government's attenuated argument here is that somehow there was time taken out of the government employees day therefore it affected someone's ability to do their job well the government chose tactically to not get on the employee who is no longer with the bureau of prisons to determine testify to what kind of time they spent working with this letter going to adopt that argument let it get him false statements and i don't believe the letter does a false statements and i've looked at the letter it explains that there is substance abuse issues and problems and it actually doesn't ask any decision to be made this is truly discretionary judgment on whether our data is appropriate and there's not even a call to action in this letter that are used it just simply outlines that yes mr marshall had a problem so  this letter simply outlines that there was a history of substance abuse problem and this wasn't someone off the street this was a certified alcohol and substance abuse counselor so we're looking at someone who this is what they do for a living and they specifically outline did happen on the record that there was a substance abuse alcohol and drug related problem but again they had no ability to influence anyone when we look at the substance of the letter worst case scenario someone looked at it through a circular file now  prepared to take the position that you know every time someone says something to a government official and it hands out or doesn't pan out that we're going to come up on eighteen u s c one thousand and one by lation that's a scary slippery slope for us to go down here that's what we're looking at specifically in the budget under case you know further that to that if you look at the record it calls the last recorded call is not something that mr bush niters a party to it's  doing what they wanted him to do so to move for so many different layers of what could have happened and what did affect things were very far ted you waited from that's when you find some time for abo embezzlement terrorism you name it but the point here is is there a specific intent that evidence of specific intent for a quid pro quo offered to mr cherry and when you go through this evidence carefully  nothing in this record nothing that the government can point to know someone had credible reasonable evidence that a jury could rely on to say yes there is evidence of quid pro quo the government can put to matters appeal so much that it was convict the following trial because he had this case fixer charles goldman and listed a substance abuse counselor to write a letter that was filled with false statements about rush letters client substance abuse and suppose wrong turn treatment those statements were designed to get schneider's client and soon they are going to get a released early from prison a letter was directed to a specific decision maker within the prison facility dr banks and was as probed rate because of the doctor hofmann testified a lot of like this is considered in the discretionary decision made by the g o p and it's just common sense that when the decision is whether someone should be admitted into a drug program the fact that  it's important also point out here the government is characterizes several different things not the least of which is scott statements that i know who to talk to of course he does but refer clients to certified substance  it's very clear here too the government says well they didn't try and argue hard enough at trial that the letter was truthful what does that even mean the government's down to weigh whether or not the argument was strong enough to persuade conversation to a quid pro quo is simply not there and when we get to the conversation but the government talks about which is a conversation with mr goldman had with somebody else not mr scott good in which he talks about getting mr cherry to testify in a way that would be favorable to mr ross once again there is no evidence in this trial in this record from which a jury could reasonably infer a knowledge of a qui about another witness these facts are big your honor and i can't stand here and can tell you anything else but under these facts bad as they are there isn't one on the record evidence of a quid pro quo her knowledge of