yale he's admitted to practice in new york and as i said he's a law clerk to judge sykes as is daniel mcnally he received his undergraduate degree from the universe chicago his law degree you york university submitted to practice in illinois and as i said he's a law clerk to judge sykes and judge williams walker capri saunders received undergraduate degree from northern arizona actually with great enthusiasm we look forward to seeing all of you appear many times before a court welcome to our and i think you need to be sworn in now thank you may have please the court i'm deborah bonamy i'm representing the united states morning your honor says court does have jurisdiction to hear the appeal from the government district courts dismissal without prejudice of the indictment in this case this forgive me but there before we even get into this void can you be kind enough to give us honor all of the cases are currently in the pretrial stage there are a i'm not sure that i'd be able to list on individually for you but there were a number of the same discovery request made in each case approximately certain of the judges were handling the cases deny discovery others granted discovery those they granted to three have been selective prosecution it's my understanding that that's still in process and that the defendants have been granted additional time to prepare their motion and and what has been the government's stance in the cases where discovery has been granted with respect to the well in every case the government has objected strenuously to the defendant showing as has argued in the court that the defendant has not made the showing that's required under armstrong in the case where the government's objections have been overruled the government has attempted to comply as best we can there are so you are  mplying in certain cases we're doing the best we can we seek review of this issue and this case your honor this what this we we sought review in this case before we complied with any of the discovery orders and any limited and in the there's as i say there's been a range but i would say there's the range begins with no discovery it goes to judge say needs order which also included a thorough analysis of the  situations where district judges ordered the disclosure was there in camera review i'm doing so even situation if she reviewed certain documents policies procedures was that the process in those other cases in in some w in other cases it was not the end in judge cheney's case for example she reviewed certain material and camera and then ordered that a limited portion of the material that she reviewed be disclosed to the defense and the material that she ordered disclose was limited to information related to the criteria used for targeting defense targeting sure about that your honor i can't say i was not demanding this except in the case the other the other difference between the cases that and and some of the cases there was a there was a lack of evidence that the defendant some of the cases including this one there was a lack of evidence indicating that the defendants were targeted at all the government's presentation an affidavit in support of the complaint in this case as well as in its presentation in its opposition to the motion for discovery put forth facts indicating that even the initial target was the first person to initiate a discussion about this and you did so in the course of making controlled sales of heroin and crack cocaine to the confidential informant and the other defendants in the case were recruited either by the first defendant mr davis or retain the defendants and proceed with the prosecution in that way even if it loses the appeal on the on the merits excuse so we have it the defendant is entitled to review all of to review of all the pretrial orders at the conclusion of the case whereas the defendant is a pro whereas the government as a practical matter is is unable to review most are unable to obtain review of most of those issues if the if there is a conviction obviously there's no need for review and if there's an acquittal the government is almost always not entitled to review of any kind so this is a situation where the government this is really the government's only option for review and this is the reason that this type of review is permitted by the statute exactly what the statute was intended to obtain but you know you have the judge let me just follow up in this room and could you talk a little bit about the process of obtaining the  where there if it if the government obtains dismissal of an indictment there's a risk that certain of the defendants are all the defendants will be permitted bond and some may flee there is there are delays that as a general proposition in europe to the detriment of the government who bears the burden of prove there are delays that are necessary to litigate the issue those costs i think are reflected in the fact that in reality in the forty five years or so since this statute has been on the books in the form that it's in there is a thirty one year very few i mean there are less than twenty appeals nationwide in forty five years challenging  dismissal that was incurred based on a discovery issue i mean that that demonstrates that there is a cost to the government that it is not cost free in any way not to mention the fact that the grand jury is an independent body have said before it is not a frequent thing but that does not mean when it happens i assume everybody in the office would hear about it no that is no i don't think so no how often does it happen i can't tell you nobel that i do not know it may be true but i don't know of it what is the use to be true i can tell you that was very close and it may be now and i just don't i'm not aware of it but what i can tell you is that in our experience number of cases that are investigated to the grand jury and my own experience and experience of our office is that grand jurors act in just the same conscientious way that pena juries act and they get very involved in some of these investigations and that and the government is required to present witnesses that they might not otherwise present and present evidence that they might not otherwise present because this is based on the interest of the grand jury so it is just it is not a fact that the grand jury is merely a rubber stamp for the government given the basis that you presented to the grand juries that indicted the defendants of the stash houses is there any doubt in your mind about whether the new grand jury would be prepared to and die i would expect that we would present sufficient evidence to support an indictment and going forward this fall but most of the defendants have been released on bond one of the defendants has not been released on bond and that has been a function of his having difficulty presenting as surety to the court the government did not object to his release on moms subject to the court's requirements that so you may have been a kid and i just missed it how many of these cases are pending right now  i believe there are twelve i think there may be twelve one maybe less than that and i have honestly i don't recall you ask judge garrett to dismiss the indictment with with prejudice a limitation on the government's ability to present evidence and that is not a good necessarily best fit with this or circumstance i doubt that that would be what the court would consider i think the two things that the court would consider would be a dismissal with or without prejudice we requested a dismissal with prejudice or without prejudice and the court and the defendants one of the defendants objected to that whatsoever and the court granted the request and what we requested i mean this wasn't a motion to dismiss this was a request that the court as a sanction dismissed the case so that we could pursue an appeal and the alternative might have been contempt that's that's the other and you know as far as that goes that as the cases repeatedly say it's not it's unseemly for the government to demand a contempt proceeding to refuse to comply and and be forced to receive a contempt in order to obtain review of an important issue and this is an important issue here  statutory question that was explored a bit in the panel opinion that maybe you could address for a minute section thirty seven thirty one obviously is the statute that deals with government appeals it doesn't mention appeals from discovery orders which is what got you into this box to begin with i mean it really is the discovery order that you are trying to get reviewed should we infer anything from the fact that the statute doesn't have you know the i mean has a section about mention the apex distributing case where the dismissal was with prejudice correct yes but that did not factor into the comments i mean i've heard obviously the question the question is whether the legislative history indicates an intent to dispose  i'm certain limited number of workers and one of those orders is an order dismissing an order judgment dismissing an indictment or information and the only exclusion that's included in the statute to that to that grant of authority is the exclusion for orders of dismissal that would preclude further prosecution and when it when an exclusion is provided by the statute normally that is taken to mean that other solution should not be applied the plain text of that of the of the statutes does not distinguish in any way between dismissals with or without prejudice and the interpretation by the supreme court that that those distinct that all distinctions are in the various different types of dismissals have been eliminated by the statute is is absolutely in keeping with the with the plain text of the statute itself it hypothetically ok say the government loses a motion to suppress because a search was improper and that's after the district court has issued a discovery order like the one here if the government appeal i'm not sure that i can envision a circumstance in which a motion to suppress would coincide factually with discovery order but perhaps perhaps you can envision when i can as i'm standing here what we're talking about here is an order that was issued as a sanction for failure to comply with the discovery orders so the two orders are inextricably linked it's hard for me to picture a situation that motion to suppress would be would fall in that category but the other thing is that the way the statute reads the authority to appeal adverse rulings on a motion to suppress hat comes when additional required so for example the government must certify that the evidence of the particular evidence is critical to the government's case and it's hard to see how those requirements would fit with tacking on a discovery case what i would say your honor is that this this catch you applies to government appeals and only government appeals it doesn't change anything with respect to appeals brought by a criminal defendant or appeals brought in civil cases and it is brought a dispassionate sits in a context that's very specialized it's one in which the government's opportunity to appeal is narrow and limited and particularly not because not only because the statute is limited but also by operation of the double jeopardy clause and so it the statute is a grant of authority period i don't think that it should be seen as an exception in any way other than some of the orders that are being committed to be appealed are not final or section twelve ninety one in the final water requirement play here because your own brief cited section twelve ninety one in addition to section thirty seven thirty one so i assume that you agree of an indictment even one without prejudice as a final order as to that particular indictment which it clearly yes it is not an order that terminates the litigation in toto but it would be it would be and reasonable to require that level of the finale to hear when in reality the government is going to get it from appealing this order at the at the conclusion of the case the matter what happens i mean it's there's no opportunity here so in that sense it is not the case that there's there's an equality of opportunities for review and what we have here is an order that the government has discretionary power over that and what you seem to be seeking is a form of interlocutory review of discovery orders that gives that power which that power in the government's hands without court the statute to impose the requirement on the government to choose between a meritorious prosecution and the vindication of important rights and important interests under the constitution that you have here involved you know rising to constitutional dimensions such as say separation of powers so what i would say is that congress decided and nobody has argued that they were constitutionally unable to do s decided that the government should have an opportunity to appeal in the contract to appeal a dismissal and that dismissal does raise the stakes so in other words there  mandamus as you well know mandamus presents a completely different set of circumstances in the sense that it has a different standard i mean mandamus we understand and the objection that we had to even that was bad it did not comport with the requirements of armstrong in that the defendants had not made the requisite showing and that particular piece of information is actually one of the crucial pieces of law enforcement efforts i mean that to disclose that to tell the entire world here's what we're looking for i mean quite obviously enables defendants to involved in armstrong just to be clear so it's not it's not a stain we understand that the court has raised concerns about this type of prosecution and we have for this type of investigation and there we have taken that to heart and reconsidering various aspects of the way that we proceed with these cases but that alone provides no discovery because much of the information this relative relevant to selective process the prosecution claim is solely in the hands of the government so exactly what could a defendant do well actually with respect to interpretation of the facts in order to fight to determine a class of similarly situated individuals there is a lot of information and known to the defendants individually and available through the public record be submitted by the government acted with respect to sentencing there's a lot of information about the individual defendants who have been charged in these cases of the oval to the defense certainly enough to create a  to posit a class of similarly situated individuals that is a lot more narrow than the population of the northern district of illinois but beyond that there are other details that much that sometimes arise in cases that that would be useful for this purpose for example in discovery the defendants could see evidence of conduct or statements made by agents that reflect bias racial bias i mean that that is a subject of a recent opinion from the recent decision in the fourth circuit i believe also there are situations there may be situations where a group of defendants are arrested and only and the prosecution is  only pursued with a back to some of the defendants and not others there may be desperate treatment in the group these are relatively large groups of defendants and there may be just disparate treatment afforded different defendants in the same case they obviously the defense is collaborating on this and it is something that that it these are topics of about which information may be shared so it just we would disagree that out of all the relevant information is in the hands of the government here we just we don't agree with that and in any event at the end of the day armstrong focused on that very point and repeated it again  to the issue as to the merits armstrong made clear the bar is high the bar is high for a reason the bar is it's not a it's not a mistake it's not something that just happened it is intentionally high and the defendants in this case did not even come close not even close to meeting it in particular because they provided no evidence whatsoever that even raised a question sufficient to obtain a hearing on the issue of whether any of them were targeted at all and that that's the bottom the bottom line but the other the other aspect of it as we've already reached was that that the statistical evidence that they presented was no different than that presented in armstrong the supreme court the court bill titus for the apple e's i'm going to be presenting argument to the court on the jurisdictional issue and mr speaker will deal with the merits i know there were some questions about what's happening in these other cases and she would be in a better position to answer questions along those lines and she's been involved in some of those other cases we've spent our time twenty ten mainly because we didn't know that the level of the court's interest if the court had we are all agreed that the discovery order was was not appealable so we're we're here because the government had this bright idea please give us the dismissal without prejudice and then we'll be able to to get to be the seventh circuit so i mean you say that although of course that's precisely the template that armstrong says for whether or not there was a scotch and if it's quite obviously the same situation well let me deal with with armstrong of course as we all know the supreme court and i'm armstrong did not talk about jurisdiction and it's a lower court we ought to say that they just blew it and we're going to find that they were wrong what happened  in the lower court and i haven't been able to access the briefs and in the lower court but the ninth circuit in the unbiased opinion was explicit and unambiguous in saying that if the  because what the government in this case wants is if they they when they get to to go back and resume the case and if they lose they get to start it all over again and that's certainly not what the ninth circuit and armstrong invasion and i'm not saying you should decide the case a certain way because that's what the ninth circuit said but certainly i know we get there but certainly the supreme court has has not directly spoken to this issue and we wouldn't be here if they had been more explicit a bounce counsel let me tell you what my my problem is with with your position on jurisdiction the paragraph of the appeal was taking paragraph warm authorizes appeal from two kinds of things in order dismissing an indictment and an order granting a new trial and the order granting a new canonically non final the question is why within the same paragraph and without using the word final would there be a finality requirement for an order dismissing an indictment but not a finality requirement for an government you don't get an appeal of an order granting a new trial so it's not as if well i thank god i'm not going to stop their parole what it's worth the next paragraph is the one that authorizes an appeal from a decision or order suppressing risk losing evidence flying right and the third paragraph authorizes an appeal from an order modifying the conditions of an order granting release and that's kind of on a clean and final as i understand your position it is split up all the things listed in the criminal appeals act and there are a whole bunch of the only ones subject to a finality requirement is an order dismissing an indictment and that's without any clue in the of the criminal appeals fact that it is uniquely singled out for finality that's what really troubles me about your position and what i hope you will address it i i will give it my best shot if we confine ourselves it did not find the language of the act very helpful and instead it looked to legislative history but you don't want to rely on wilson because wilson's bottom line is we government can appeal whenever the appeal doesn't violate the double jeopardy clause and that doesn't help you here well i think the language in wilson is much too broad as this point recognizes it's a lot of look we were just a court of appeals we can't say we're sorry supreme court you just blew it we're not going to follow it we're going to do something else we actually have to follow what they say now what you might say is it's too broad in the sense that the criminal appeals act doesn't authorize appeals directly from a discovery order because discovery order isn't listed but what i understand the supreme court to be saying is that it authorizes an appeal from anything that's listed whenever the double jeopardy clause doesn't bar and dismissing an indictment is listed right so you don't want to rely on w with prejudice in one hundred seventy one no one was thinking about the idea that the government could dismiss a case without prejudice in order to get review of a discovery or i'm i'm not disputing what people were thinking but i hope you will deal with the knob of my question which is could if you just read the language of the act everything seems to be before eddie to appeal from interlocutory orders suppressing evidence or orders for a new trial the gist of your position is that we have to carve out treat orders dismissing indictments differently from every other order in the criminal clause when the government loses a criminal prosecution it's overwhelmingly likely it's not going to be able to appeal so the usual thing that we say in twelve ninety one cases isn't available you know you can't say well you just have to wait and take your appeal when the time comes so i don't see why do the statute entitled appeals by the government has to start from the sun now at the starting point i don't know why does it start from the language  starting point because the statute when it talks about what you speaking with in it context in the context is dismissals with prejudice there was what was where do you see that in the first line of the statute when the granting a new trial part is in there too of course but the statute does not distinguish between on its face in the actual language between prejudice and without and maybe the statute is thinking i mean i don't know what it's doing but maybe it's thinking about the fact that you don't just go in as a government and dismiss the indictment yourself you have to ask the district court to do it the district court will probably be amenable a lot of the time but that might not think it appropriate other times and your position and so i guess i'm reluctant as a formal matter to assume that the government just tallies and gets a new indictment with no cost i think part of your question is another way of asking about the government's position and i think really had no other option here and they have any idea even if they did have another option if the statute allows an appeal without adjectives you know from a decision to missing an indictment was that's like saying well you know in seventeen ninety one people who wrote it ratified the fourth the fourth amendment weren't thinking about electronic surveillance they're for electronic forty four years i want to freeze a stare at you to what people were thinking about a half century but the one thing that has not changed is that the federal rules of criminal procedure do not talk about dismissals with prejudice  without prejudice they just talk about dismissals and so you have to keep that word dismissal and in line with some other things that are important namely that you don't want to have a bunch of you or the district judge might enter an order excluding some evidence and then the u s could appeal right that that's sort of my follow up question since it's perfectly easy to see how an appeal can happen in a case like this why would one strain to stick the word with prejudice sort of final into this little section of the criminal appeals will be because and unless the government has to make that choice it's much too easy for them to be seeking these dismissals without prejudice in civil cases you wouldn't even be troubled by this at all if someone said oh i don't want to present my doctor for a deposition dismiss my  without prejudice so i can appeal but civil cases are not analogous because you can take an appeal if you lose at the end of the case and that's not true congress that's why the double jeopardy concern permeates this whenever there's a double jeopardy problem and actually it's the end of the first paragraph no appeal shall lie with a double jeopardy clause and perhaps it's further prosecutions of jeopardy is attached and the government decides then to dismiss the indictment that's a whole different thing well but that's not always true if the government had complied with this discovery order and judge perry had said you know you've laid out a case of selective prosecution i'm dismissing th let me go back and try to answer a question a judge williams had about the motion to suppress if the judge would grant that a motion to suppress the government would be able to in the context of appealing that word or to suppress appeal the discovery orders as well so the government has an opportunity to work within the scope of the motion to suppress the i don't think you just tag on an additional issue that wasn't appealable maybe there's a discovery an exception now so yes you do make the defendant wait until the end because the defendant could take an appeal the defense you can be very happy with the outcome because he's acquitted or the defendant unhappy and you can take an appeal but but to be clear statute it's not really smoke signals if you're talking about someone who is writing a statute in a context where there is no reported decision of a dismissal without prejudice in the face of government recalcitrance and they specifically say we're trying to get at apex that's one of the problems that we're trying to to south there's there's no reason at all to think that they would be saying oh well you know let's just open the floodgates with prejudice without prejudice we don't care we'll let the government take as many risk free and armstrong has been on the books for years and i don't think your floodgates prediction  pass i think if you will against us the floodgates will open because when we get orders for discovery in cases the government's going to say oh no we don't like that please dismissed without prejudice us versus davis if if thirty seven thirty one was the statutory exemption to the final judge to it it did but it certainly wasn't saying that the existence of thirty seven thirty one makes twelve ninety one i choose to emphasize though that thirty seven thirty one was not subject of the case that that is a statutory exemption so that pretty pretty compelling language so yeah and we know that's just wrong they don't get to appeal whenever they want and that's why congress had to come back and deal with motions for a new trial or to deal with government appeal is an example of the port speaking way too broadly because in wilson there was clearly a final decision that was under review by the government's appeals no question about it is a mere fact the supreme court has never on decided a government appeal where there was anything other than a final decision except armstrong no i would not agree armstrong if you look at the ninth circuit's opinion there we shouldn't say that they were the ninth circuit is not necessarily true that's one reason why they reversed the ninth circuit in armstrong they went to the barrel of the panel in armstrong you might want to look at her describe it as without prejudice and that did sound like what the supreme court was describing and apparently the solicitor general's office has a very easy comfort with you know we always do the same now we can always do it and that's why we're here today thank you right but we appreciate your argument government says is certain neighborhoods have higher crime statistics than other neighborhoods and you would have an association of racial characteristics if a neighborhood happened to be predominately african american or project latino or predominately something else but that but now i'm thinking of the language from seanie and other cases would that be enough to show that the racial disparity of descendants was the cause of their race or is it just in spite of their race their focusing prosecutorial resources where the crime your honor the government's claims that it's focusing on high crime districts that simply happen to be black are not borne out by the evidence if you look at the governments the suspects the ones they cited to this court the third district where this operation occurred does not have anywhere near the highest indexed crime rate in the city it's of the twenty five districts in chicago it's towards the middle it's at the thirty third percentile furthermore of the two districts that two of the districts that rank higher have more white people and more many of the several of the districts that rank higher have a new nearly equal african american white population so and even when it comes to robbery rates your honor the third district is near the top it's a so and your honor i would also posit to the court that it's really irrelevant that the operation in this case arose in the third district because truly that the proper geographic area if we're going to talk about what is the similarly situated comparison group here would be far broader it would be were all ninety seven defendants in the northern district of illinois were drawn from and that at a minimum of eight counties in the right or so so i have two other things you can answer them in any order and then i'll be quiet one of them is the point that the government made in its reply brief that your brief here included a great deal more information that might have or did this order then was presented to the district court and i'm troubled by that because it seems to me especially looking at some of the other discovery orders that have been going on in the northern district maybe we're not on an all or nothing basis maybe there's some discovery that's ok but this order just went off the deep end despite the far more extensive order than certainly judge say needs in actually some of the others as well so some troubled about that aspect of things maybe so the court is troubled by the breath of the discovery and i'm troubled by the fact that you are giving us a lot of data that if i were the government i would want to say something about it and i always feel uncomfortable is that the appellate level a whole lot of new facts come in that no one's ever had a chance to respond to your on iraq what we were doing there was the government in its opening brief posited similarly situated comparison group of people with prior convictions for drugs guns and robbery so what we were doing there was to try to simply you know sort of with our back of the envelope calculations to show there's further evidence that the district court did not error here in basing its ruling on the comparison group of all white people in the north and just illinois because if you even look at this narrower comparison group tailored to the government criteria that they gave us in their opening brief we simply wanted to stablish to the court you know that the court to take judicial notice of this idea that that that really any way you cut it even if you cut it more narrowly than then we cut it below and then we were able to cut it are in the in this comparison so your honor the vets comparison group is something that we are really shooting in the dark here that comparison group of narcotics and firearms offenses is something that if we are if what the government is saying is that we haven't created a narrowly tailored enough comparison group it's very hard to know how do we create that group and if your honor if we do simply go with felons in possession and then perhaps the government will say no no no there's some other firearms offenses you haven't included it's it's very hard to know i think that in some ways whatever we were to do here we would end up in a situation where the government say no no no you don't have the right comparative so are you are you saying that when you of present these percentages targeting criteria if we knew the targeting criteria there purported selection criteria how are they choosing who's going to commit the crime that they're creating then we could create a more narrowly tailored similarly situated comparison group to make what you believe would still be a very stark showing of just well i mean that's a good that's a good approach but the discovery of the you're speaking is much broader than wouldn't why wouldn't it be the place to start you know what  i absolutely agree that is it is essential if there's going to be a concern that we haven't been narrowly you know created than that correct so many scituate comparison group when we would have to have those criteria and respond to me she says you know lots of data at your fingertips to help make this class you agree with that your honor i don't agree with that truly for example if we were to be trying to access information about all of the ninety seven defendants first of all from the from the outset we don't know if it's criminal history that's the the common thread or something else let's say we assumed were criminal was criminal history and so we tried to get them might be a criteria in the manual you know what we got exactly right so if we were to assume that then we would have to search through probably five to ten thousand pages of discovery we'd have to get the discovery from all the ninety seven defendants attorneys search through that discovery analyze and figure out what are the commonalities in these defendants criminal histories and even then your honor it would not have been evident that criminal history was the common thread if we did that for several reasons first of all in this case alone there is one defendant who had biro criminal history and secondly there's another case in front of judge gettleman the pact and case in the district court where the lead defendant does not have a prior conviction for any of these three offenses the government has laid out it's relevant and i'm happy to present at that to the court in a brief after the argument but the point is we couldn't have known and then even if it did turn out your honor that the proper group was what the government's proposing here it is impossible to get there's not publicly available data on the love all convictions for those offenses that's not possible to find i have talked to the they have projects that your engine cannot get this we absolutely cannot get that without a huge amount i mean we would need we would need a court order in essence and also i imagine a huge amount of litigation that would follow from from any kind of court order because it is not publicly available to those and those convictions that just extern not available from the state they absolutely are not your honor i can't i have spent many hours looking into this issue and they are literally not available not only can we not figure out who had convictions for those particular crimes we also can't figure out the race breakdown none of that is available from the state council were you invited there were division general invited groups to submit proposed to discover honor it's my understanding that most of the judges i don't have the exact number but most of them did in time or inspection i know for i don't enter the order and then there was no request to europe for more information on the c i is that right or did i miss that i know in the seine case there was a request and she also authorized discovery concerning the c i and that was not a request here that's correct one of the only things that that is also an avenue of exploration because when you find out how the sea i got in the game and how mr davis is the only one who was targeted if you will by the government and he would someone who brought these other people and they knew there would be other people but they didn't know who they would be they could have been of any any race and membership any whatever your honor when the a t f made a discriminatory decision at point a in selecting the initial defendant they knew that that decision was going to have discriminatory effect that point b and so they knew he was going to focus on other african american yes your honor i would say they did know that first of all they knew that he was going to go after other people in the other people right and then secondly yes in fact around on this is something i'll be happy to submit to the court in a public filing that happened after a debriefing in this case ethnic lines so i was fine where did that come in your honor that was a filing in the case in the jackson case before judge durkin and that was actually a government expert making that statement and again i would be happy to submit that to the court so it is very much our position that the targeting is on behalf of against all of the defendants and the discriminatory factors against all of the defendants i would say that if the court thinks that this is a factual issue that is essential to the legal issue and that is unresolved and that we haven't established officially then then that would be the basis for remand an evidentiary hearing well as the government the prosecutors focused on black people singing black people because on average they're poorer than they figure not be racial discrimination if the race is just being used as a proxy for likely income and therefore likely for the actual need your honor it seems very much that that is a question that would have to be addressed at the at the eventual explain why race was actually a purposeful factor and why any race correlated factors like poverty were not actually what was really the operational issue  were argument the panel stage we were struggling with respect to that and had and stated specifically that we had intentionally not done that because that is absolutely not our burdened with respect to the kinds of things that have been discussed in the other cases and it is accurate that the government has filed an expert opinion publicly and one of the other cases but  lot of information that i was a very dangerous also there killings so there was a footnote in the breeze with a long list of actual robbery cases right that's what i was going to say i don't know if statistics which is what i thought you were asking about but there are actual cases  and there are also cases that we should hear about after the fact that are never reported when we debrief and cerebri to debrief defendants and and attain information through proffers an example of the case that was recently before you your statement that this information was available with respect to background criminal record but what i was talking about is information about the defendants that we have charged and these cases in order to assemble the list of characteristics regarding convictions i believe is also unavailable but there is information from which the defense could drop of course this would really go to the overall set it really wouldn't say anything about defendants are targets who were ignored by the government or in situations for example where multiple people are arrested and only right well that's what you what you're about to say illustrates the problem with trying to apply the armstrong standard in the context  kind of crime because it's government initiated so the struggle on all sides to come up with the proper statistical measure to get in the door to obtain a discovery order suggests that that standard needs to be relaxed a revised conceived for purposes of a government initiated crime like a stash robbery so that assumes that statistics are the best way to get in the door and i don't know that that's necessarily true but would be what could be about actual evidence of actual discrimination and it's one of wholistic you're talking about a holistic file review which may not be a way of demonstrating enough of a showing to meet the armstrong standard but that presupposes some information about the targeting standards that the a t f is using in order to do that kind of holistic file review what i don't i'm not sure i know what you mean by holistic file review what you mean by that but what i would say we're talking about we're going to each case that's been prosecuted and looking at the entire file that's been disclosed to the defense and i'm talking about the defendant's own personal experience i'm saying that in that case there if there were ninety four federal district courts the u s attorney's office and they've been firing right well that's true but to say that that was not recognized in armstrong i think is a great mistake armstrong involved  order to protect the core functions of the executive in order to protect those functions from unnecessary intrusion a high bar is set for discovery and if there is a case where there is specific evidence  an i mean that is a case where clearly the defendants are going to get much farther into the door but if what we're talking about is a lack of evidence like that description court is seated  government has written criteria for the for all sting was information regarding the criteria was provided in discovery in one of the cases what you know any expert testimony come up with his or her criteria and then say this is what i think you need for discovery order they accept or reject all or parts of what's tendered by the defendant