your honor so i would like to start to fight could with issue number two which is the issue of the request by the appellant for a new trial based on newly discovered evidence as this court is aware there were how the distribution of cocaine after trial prior to sentencing i was notified that i had tonio hill the coconspirator who testified against knowing the person known as last he denied ever to have any illegal dealings with mr chen including that of cocaine distribution based on that we filed a motion for a new trial based really just covered evidence before prongs that we had to establish or number one the evidence was discovered after a trial that is not disputed by either side the failure of the defendant to discover the evidence was not due to a lack of due diligence i don't believe that is disputed by either side number three the evidence is not merely cumulative or impeaching number four the evidence is but tiriel to the issues before the court it is certainly material and number five the evidence is such that a new trial would probably produce a different result it appears that three prong three in prong five are the issues that i think i should discuss judge as a witness myself he would have directly contradicted the testimony of mr coleman who is part of this conspiracy the fact that it may have been peached in addition goes to the merely as part of this problem but first and foremost i believe that it it would have exculpated mr chen entirely and i don't believe the government would have called mr hill had they been aware of these letters which is why i would have done so the fifth prong is the remaining issue i believe and that is the evidence is such that a new trial would probably have produced a different result it's important to note at this point that was charged with two counts the second count is possession of cocaine which essentially we conceded ad during opening statement entering closing argument the first count contained intent to distribute cocaine crack cocaine and marijuana as runners know the jury found mr shand not guilty as to the crack cocaine and marijuana portions of that count this is significant because both mr col and mr hill only testified as to cocaine therefore it is it appears that the jury placed greater emphasis on the cumulative testimony of both mr hill and mr coleman if faced with one of the two coconspirator witnesses who testified against mr chen and sensually saying that mr chen was innocent had nothing to do with this i think that would have bet a different result in addition your honor we raised two other issues and those issues have to do with the reasonableness of the sentence of one hundred eighty eight months which is the bottom of the guidelines and we presented evidence in mitigation that warrants a lower sentence and the issue of whether or not the motion for judgment of acquittal should have been granted and it is our position that there was explanatory evidence and the contrary to what the government offered as proof and both of those motions should have been granted and the court have any questions for me i'd be glad as to any issue again i thought i started with issue two because i believe that that is probably most relevant to the court as this court ordered this oral argument i think we understand you've save n thank your honor may please the court my name is david waterman on behalf of the united states since appellate counsel focused on the second issue i will as well the district court rightly held blowing to nine chins new trial motion that there was substantial an overwhelming evidence that existed so as to the fifth prong chain cannot establish that if there was a new trial and he had bills to letters that the result of that trial would probably produce a different result that's because hill's testimony was particularly in significant in the scheme of all the evidence that came in a trial for example both here old coleman and gary williams testified about chen's extensive involvement in the conspiracy harold coleman testified the chin had just delivered and distribute about twenty kilograms of cocaine following the conspiracy but all of this was in a related to the broader conspiracy in terms of the drugs and it was in the record in terms of why he was in jail at the time that he had met chin but the lie to get all the conversation with coleman were while he was as well as with other coconspirators at apartments and homes where they had stored and distributed those drugs and there was the september twenty first two thousand and traffic stop which is particularly important to the government's case where officer christie had consumed testified that he saw seen the registration papers on top of the two three grams of cocaine in the car and then subsequently telling deck's who was also dressed as a flight attendant and the back seat of the florida highway patrol cruiser that i had attempted to pass the cocaine to you and that had i known or remembered i would have thrown a dog out the window and then he also i called his brother while he was in the backseat put him on speakerphone and told his brother that the officers had found about two grams of cocaine and he was going to take the two g charge and then he also informed his brother he asked what should we do with the money which indicates that he had a broader understanding about the scope of the conspiracy because there was fifty thousand dollars located in dix's luggage as well as seven thousand dollars on his person and all of that evidence was corroborated by coleman's testimony because coleman also testified that chin told him that he had been pulled over on the way to the airport and the guy with the flight attendant and that on the way there he had before dropping the flight it's an offer he had forgotten to sell that the cocaine that was on his person so as to the fifth pran the chain cannot establish that the result of a new trial would probably be different based on all of this is the district court correctly held substantial and overwhelming evidence now as to the third prong as we are going our brief the letters were merely impeaching or cumin if there's a couple different ways to interpret the letter but we would disagree with the pilots counsel to interpret the letter that he ever stated that he didn't denied knowing blass that's not what the letter stated the letter state if he was letter is read to say that he is unable to identify chin as the drug dealing blass than that he would be consistent with his trial testimony and therefore would be cumulative however if the tests if the letters are read only to say that he had made a mistake or he was confused and that his prior identification he was retracted in or going back on them that would be a circumstance in which his credibility was at stake and it would go to his and it would be impeachment evidence so chain cannot establish the third prong either in the circumstance in that and i think it's worth noting the district court's interpretations of the letters below because as the district court said read literally h entire story and therefore his letters are consistent with his trial testimony because at trial he was unable to identify blass as chin also in terms of the second this this second issue testimony was particularly in significant the jury could have reached the result that it did regardless of his testimony because hill was really as the united states said in its rebuttal argument a very small part of this case all that he provided was that vine had introduced him to an individual by the name of the last and that blessed on two occasions had sold drugs while he was in south carolina but that is insignificant when taken into account all of the as the district court correctly noted substantial and vons criminal history category was a three and he autumn we accepted responsibility for the crimes he committed whereas chan had a criminal history category of five including an armed robbery and he didn't accept responsibility and both ultimately received the bottom of the guideline range sense chin received a sense of one hundred eighty eight months is guideline ranges one hundred to two hundred thirty five and beyond receive a sense of hundred fifty one months when his guideline range was one hundred fifty one two hundred eighty eight months so for all those reasons the court imposed a reasonable subset of usable sense and it was significantly below the statutory maximum for count one which was life and for count two which was twenty years so unless the court has any other questions for all those users we would request that the court affirm the judgment of the it is without question i believe by either side that there was evidence to do some trial that mr chen was a drug addict he was high on cocaine at the time of the traffic stop that my colleague referenced during his  argument this is a major reason why we did not dispute the possession of cocaine count contained in the indictment it was also judge as noted in our brief and contained within the transcripts that your owners will have an opportunity to read that there is lead agent and we walk through jail calls after going through hours and hours of jail calls i was able to locate jail calls where andrew chaikin says don't tell my brother anything about century the conspiracy he is always high and he's not trustworthy i don't want to know anything about this going back to the two letters at issue your honour's will have an opportunity to read them again and i will point out i believe the very relevant portions of the letter i certainly disagree with the government's assessment but i'm biased so i'll leave it to the court to make their own determination but unequivocally this is what mr hill wro part i didn't know the guy chan prints these blasts staked him for a different guy i don't even know him and the second letter he says i don't know the guy lesley chan a cape less this is important because during the government's direct examination and redirect examination of mr hill he could not identify mr chen who was standing ten feet away from sitting ten feet away from him he constantly referred to a person by the name of  blessed and that's significant because we have he also didn't he couldn't identify mr chen is blatz right so where is the inconsistency well judge i and again i hopefully disagree i think the transcript shows that he constantly  identify mr chen as bless so that that's correct so where is the inconsistency think consistency is there is he keep refer to this blast as the person that he dealt with although he could not identi chin or a cape less as the person sitting next to me turning trial it's important because in his letters that he wrote before trial he states i didn't know the guy chained in princes bless it's our it's our position that he's saying i don't know who any refers to that saying it's essentially a statement of belief and both of the letters they were written a couple of weeks apart but again prior to the trial of mr les so it's our position that when you read those letters he's stating i don't know who blesses i never dealt with blasphemy ripley repeatedly states i don't know i'm i don't know the guy and it's prince he's blessed so our view is that he's stating i don't know who blesses that is contradictory to his testimony a trial where he said i can't tell you that that is bless but i dealt with last i parked cocaine from him on two separate occasions and again that's important because the jury found mr chen leslie chen not guilty of the marijuana and crack cocaine part of this count and that's significant because the only drug that both mr hill clearly they did not believe the government's evidence as to the additional charge sub parts of this count as to the marijuana and the crack cocaine therefore if one of the two coconspirator said no less  sell cocaine to me i never saw him sell cocaine anyone i mean you know who this person is i think that that would have severely damaged the government's credibility when it comes to their argument that mr chin was guilty of the cocaine part of of the first count which is the possession with intent to distribute again as to the remaining issues i again submit to the court that the sentence of one hundred eighty eight months was unreasonable  mitigating factors that we brought forward and that are part of the record and i submit that the motions for the judgment of acquittal should have been granted based on similar arguments that we made within our brief that the court has any questions for me i'll be glad to answer them