appeal to this on a more court because if mr armstrong is not released since the appeal will clearly take more than three months there will be no decision and he will have already completed his three month sentence we emphasize most respectfully that the government does not deny our charges of misconduct and i see a question about that supposing what happens what you fear happens happens is it true that because he's  out of prison he no longer has an appeal to this court to clear his record technically he does but since i want to many good technically but as a practical matter he doesn't in order for us to follow br of incarceration because if he's hasn't been properly found guilty he should be acquitted again i believe technically yes but as a practical matter the right to appeal is is  of the time period the our first point against the government is that the government withheld brady material that was specifically requested by us the brady material that was withheld  specifically disproves their allegation that he missed it least one of the drug testing he didn't and suppose there were five yes or the other four that's interesting because the second part of our argument in this respect is the probation department made false claims and that was the basis of their report to the initial report to the court their force claims include the allegation that mr orme strong intentionally avoided monday random testing in or because it followed the weekend when we received the schedule after the plea it showed that he monday the monday after monday i believe it was six mondays in a row he actually went for testing the same testing one of those work the other is a current one occurred on a tuesday and one occurred on a wednesday but the point that we're making is key to his decision and this is why it's material key to his decision as to whether to plead guilty or whether to risk cross examining a probation officer or offices who carry significant credibility dramatically with the district court was whether there was in peach a bull information and this court held in mahaffey in two thousand and twelve that when withheld material is both exculpatory and impeachable as far as i know now yes he missed he took one test and missed the other four but very important it we did not receive all the notes of the probation officers and what exactly the probation officers told missed on strong when he signed up for the random testing program and maybe more importantly after he missed any of those who were in them tests is important in determining whether he intentionally and knowingly mr wyndham test and that's the crux of pleading guilty with you intentionally and knowingly and that's the information that this court in mahaffey in two thousand and twelve made the point of saying when information with that is withheld is both exculpatory and impeachment it's especially important if i may quickly go to our second point the government said at sentencing that mr armstrong quote had not paid back any of his back taxes unquote and now they tell this court that that was not maturely false quote not materially false how could they say that that demeans the position of the government he made sixteen payments and the payments he made to the district court was because the probation department told him to make those payments to the district court and the exhibit that we provide the list of receipts that was provided by the probation department to missed on strong and i suggest to the court that if he hadn't made payments that that would have been a third charge and a violation of probation so finally as i see my time is up my conclude by saying repeating sending missed on strong to jail immediately will preclude his review by this court because he will serve the three months and most importantly not yet this court has stated his surrender there is not it's been stayed by this court thank you good morning may it please the court my name is lisa washington and i'm assistant united states attorney in the eastern district of new york the government today respectfully asked this court to deny the defendants motion for bail pending appeal because he fails to raise a substantial issue a factor law that is likely to result in a reversal of his judgment or a sentence that doesn't impose a term of imprisonment the defendant has raised two issues against the government both the additional tests that the defendant relies on that were provided prior to the imposition of sentence were tests that were taken at a drug rehab facility the tests that were taken at a drug rehab facility are separate and apart from the defendant's requirement to report for random your analysis drug testing to probation that's correct your honor the defendant signed a contract with the probation department that he  report on days when the color red was mentioned on the telephone answering service and not only was that did he sign that contract was that contract explained to him but later on after april third two thousand and seventeen when he was participating in this program probation continue to remind him and in fact what is mentioned in the violation of probation report is that probation multiple times told him that the program is separate and apart from the testing that is done at the drug rehab facility  that is correct your honor and one other note i know the defendant makes a relies in part on a november twenty fifth two thousand and fifteen report it's a summary report that probation had where there's some indication that the probation officer said well if you are getting tested at the drug rehab facility on the day that your color comes up that's fine however the probation officer still i told him you have to report to central islip if your color comes up but irrespective of the fact that report and that instruction was sixteen months prior to his signing the contract that started april third two thousand and seventeen so his reliance on that  is misplaced and moreover that report was provided prior to his plea to the probation violation with respect to the second allegation about the government making a misrepresentation at  sentencing the government didn't make a statement that it knew or should have known was false it quoted the violation of probation report and it's merely one aspect of what the point the government was trying to make the government acknowledge that the second charge which was the defendant's failure to provide financial documentation was part of a pattern of the defendant's poor adjustment to probation so in other words the government mentioned we're dismissing this charge but your honor we just want to remind you that it wasn't until you put him in jail that then he started to comply and was willing to provide the financial documentation so that was the context the defendant had an opportunity to make the district court aware of his financial condition at some unseen as part of his motion for bail to the district court the defendant provided these receipts and documentation about any payments that were made towards restitution and the district court still denied his motion for bail and i will note that it's unlikely that the government statement had any effect on the senate's and in in addition to  addressing this issue of the payments that were made i think the district court in some ways had a fuller picture of the defendant's probation behavior because the defendant filed a number of the summary reports that outline the difficulties that probation had so you know the district court had the opportunity to to look at those summaries as part of the defendant's admission as well as any payments that were made towards restitution so it's the government's position that any statement that was made with respect to what payments were received or not received by virus were not material it is likely he would have finished his sentence suppose there could be expedited briefing but even still i don't know how long that would take it may be that he would serve the three months thank you  cases such as the mahaffey case that i would add but yes we could do would we could work with an expedited schedule yes right well the court will give that some consideration is washington i should ask the government as well know that seems the court that is is possible ok thank you well i will reserve decision but we'll get you and get you a decision on this motion very quickly so the first case on