since the defense in this case at trial this was a money laundering conspiracy case and the defense was that mr colorado never agreed with that a forty or anybody else to launder money through the purchase of horses there were two pillars to that defense mr colorado maintain through his counsel he had used his own money to buy the horses that he bought money were delivered to mr colorado two million dollars five million dollars ten million dollars over the no crab aeration for this no documentary evidence and that evidence or testimony about cash payments does seem pretty explosive  and your point on the brady is that disclosure of the all the interview reports would have showed that he met seven times with agents before he ever mentioned that it was on the s at trial you knew there were three occasions he was cross examined on three occasions so why is that marginal difference of three extra meetings where he didn't mention the cash payments how does that get you to do the materiality you need to show for a brady violation well in two ways and the second way is materiality of course it's cumulative and so we have the fear part as well which i'll get to that but just focusing on the cash payments one testified at trial that initially he didn't want to talk about colorado was hesitant to speak about it and that's how he explained those three initially when it goes from three to six spanning several months it's a whole different picture and it's also important to note that when he finally got around to talking about the cash payment well two things one is with the way he first described colorado's purchase of horses for the senate was as a gift which was essentially consistent with colorado's of fear so there was that affirmative exculpatory evidence at the beginning then there were six interviews where he says nothing about cash payments then when he starts talking about ok the only one he mention to talk about the ten million dollars and when he talks about the ten million dollars he places it at a significantly different time than he did in his trial because his trial testimony he was adamant that it was april in may of two thousand and eleven in his  his statement the first time he talks about the two million he says it before a certain horse auction in september of two thousand and ten so the timing is way off and then he never mentions in any of the nine interview memoranda that we have so far  never mentions the five million dollars which was a significant part of his testimony trial so it's not just the difference between three and six although i think that's a significant difference given the way he explained three it is that even after he started talking about the cash payments he talked about them in significantly different terms and he did try and this is not a case where i am testified about cash payments and there were photographs and there were documents and deposited his testimony was uncorroborated the jury either believe it or didn't and one more question on the brady issue this isn't the typical brady claim where the government hid something in you know years after trial it's found in the desk drawer of the prosecutor this document that wasn't produced it was produced to the court printing came a review the district court said well i don't think it's it's writing material again we are not going to require it to be turned over  years obviously got the right to say that was incorrect but what's the standard of review for brady claim when it was submitted to the district court for review there and that's the only difference and in terms of the notion of it being suppressed the question you know it's not a question  it was suppressed it's just that it changes the standard that's the only difference but so we talked about pillar one of the defense which was that colorado used his own money and we talked about the effect that millions testimony had on we talked about the interview memos that would have allowed us to challenge effectively that testimony let me talk about the second part which was the fear there was a lot of evidence in this case that is that authority was a brutal killer mr colorado had been unquestionably a friend was at a fourteen there was no dispute that he was a horseracing friend and not a drug dealing friend but he was a friend and so when jennifer forty had set up fourteen killed it was a sea c positioned to comment on this issue he was very close to mr colorado he was very close after two thousand and seven years at forty there was no one in a better position to comment on the relationship between those two than mr knight and mr knight was testimony was that they were friends he the ritual the trial he snorted at the notion that mr colorado could have been afraid of mr had a forty because they were friends he was very adamant about that other to the one you just got about the cash payments your own letter to the august twenty seventh letter suggests that you had vague been told with vague terms about this statement that they were true friends but we've been told in vague terms  about a comment that mr that a forty made at that two thousand and seven meeting the right after his out of fourteen was killed the problem with that first of all we asked that that was a discovery letter and it was asking the government to provide us with the materials that supported that they'd notion we got nothing in return it was in one of the three zero two zero zero one or now knows that we didn't get that and the judge didn't order it produced if you had a chance to read the cross examination of mr knight had he wasn't asked about it and there was a good reason if you asked that question without anything about going up you don't have a three zero two you have nothing in your hand he's going to do not or there's a good chance he's going to and you're going to look like you know now that you have by virtue of our court order been able to look at this five hundred pages or so special agent lawson the whole your you are not saying that there was janks that wasn't turned over correct because technically technically speaking any of the writings were the special agents or the assistant u s attorneys not knights is that correct i think that's right ok so then if the issue is just brady gig leo you also aren't complaining i guess of course that they turned it all over in camera because that was your request that they opposed so the process of turning it over isn't an issue before us it is not although i will say that i think that for unrelated reason i was reading the oral argument smith versus from court radke's and and there was criticism of that like this and i i don't think it's a great practice because the district judge is never going to be as good a position as the process right but you had that and you haven't made that an argument another we have not that the district court made it reviewing statement on the record after direct never reiterated after cross recross redirect so there's nothing in the record that i could see that the district court even did the review or pre stated that he did but that's not an issue you right and my point is wouldn't you have to do that after you've heard the witnesses statements in their entirety well i deal with as a yes but i think maybe what that would help me most now that you have all these records and you know what you asked on cross is can you quote the portions of either your cross and the portions of the five hundred pages that you would say are material  impeachment yes and you can do on the brief it looked to me like you are saying is the exculpatory features of cash payment and fear i don't see in your brief any statement that there was extensive gig leo material ok prior inconsistent all right well but right that's the argument it's not that there was vastly more impeaching of this flip coconspirator that you would have used when he's saying on cross no you're lying no that's not true you would say well you're a lot worse than the government's portrayed you to be and you're implicating my guy for being the worst but in fact you're a lot worse than anyone can imagine there you're out of there was verb atum notes that you now have with the cross you were unable to do well we were unable to cross examine him about the prior inconsistent statements i know what give me the what the inconsistent the specific of the incas five hundred pages so it's not much less the janks file because that much i think it's more like fifty just the three zero two six four this gentleman right i agree that so just the best example besides the true friends in the cash well i think i mean there are other inconsistency i can give you some example the best one that the friends in the case and i know i know that but give me the next best because i think i really understand the record about those two ok ok i've got a few yeah  he testified early in the direct that he had met with the prosecutor five or six times and the prosecutor i think brought that out in an effort to sort of minimize the amount of time that they spent talking about mr collins in fact he had but as of december eighteenth two thousand and thirteen he met with that prosecutor seven times and that doesn't count the meetings that occurred in the following two years that we don't know about leading up to drive so that was just false and it was and it was a listed by the prosecutor in an effort to show that there had not been any any particular preparation testified that when he first met with the agent he didn't want to talk about mr colorado well in fact he did talk about mr colorado in in in each of the interviews i think in each one and i didn't see any statement in there were he saying i don't want to talk about  keller ok i did that those are two good examples i can keep going you don't like that's fine but but the reason i just want to emphasize the reason we focused on the the fear and the cash i'm sorry i'm overstating yes i also happen to think we would have won but i don't have to show that to is the for elizabeth there and you're from the western district of texas on behalf of the united states just to address a couple of things that were raised in defense counsel's brady i did want to and point out that as far as the friends comment as was evident from the brief this was a statement that the defendant was present for so thereby it wasn't suppressed under brady i also want to say that while reasonable minds of course may differ about whether this evidence was favorable or whether this evidence was material it wasn't clear in this case and brown does state fourth say that you know this is going to be evaluated the district court's decision under the clear air standard i have a question about that i agree they want to courts looked at it generally it's a clear standard as the defense conceded but did the district court make any finding on materiality and the reason i don't i don't think it did is because remember this wasn't post trial this was in a post trial brady motion it was done in the middle of difference in the outcome how can you figure that out mid trial i the court will first address the court's answer the court didn't specifically say that it was assessing the materiality but i think you can infer from the court's statements that that's what it's doing and this court case law supports that there are cases saying when the courts how do you judge materiality when the trial in the middle of the trial i think well based on this court's ruling in one case in one prior case that the circuit found a court just saying i'm going to leave it  is that you could infer that the court knew the law and that they were assessing the materiality and i assume that we could if our infer that if it if the what was in those reports became material the court would have unsealed those documents so i think that th court case law supports that contention that is district court was leaving it sealed because it had made a determination that it wasn't material if we think it didn't decide materiality then what's the standard review de novo on the match on the materiality part that could help you nothing that could help you a lot that could hurt you and i think in that statement it's sort of making the inquiry is it material was it material discord at i mean it was a lot a lengthy trial of course the court sitting through a lot of testimony is hearing over and over again how friendly the defendant was with the zetas over and over so you know nothing that could help you that just sounds like the brady half of the equation is there anything he said that said i looked at this free impeachment value of him no he didn't say that directly but i work and so we have to infer both of the major materiality assessment and that he understood that it includes not just brady we have to  witness got close to finishing his testimony i assume the court with continuing to evaluate the materiality that continuing duty is on you it's on the government write any law that says it's not there isn't any law that i can think of that says it's not the government's obligation to continue to turn over exculpatory or good legal information as the trial goes on the law is that it's in any form  one well i disagree with that but he's the key witness at trial i disagree with that i think that had a host that was just as important i don't think that nyunt was like the thing that made or broke this case at all this would be a harmless i'm sorry the only relevance to that statement of facts his first interviews november of two thousand and twelve act then he's interviewed six more times before the first trial yes although some of those interviews are recording over the course of two days so it's here you end up being three o two so then and that's three different federal agencies f b i dea and i r s i don't know the agents who are present any agencies agencies i don't know if all of those agents had representatives at all those meetings the only concern the government's position was  in all of that years of interviews deep reefing three federal agencies there's not a single joint statement made and not a single brady letelier statement me well it's not jenks because it was not i never saw those reports and it's not a them statements of what you said it's issue before the court so i'm not i have not looked into what the facts are and i would not want to misstate what was turned over that if he did testify at sentencing and if they requested it they would be owed under janks correct i would need to review the law before i would make a statement on  been raised before this court so i would have to brief the issue and i would have to consult with the prosecutor and i would have to reveal review his judge walters statement ordering you to turn them over in camera did it have any time limitation to because i am didn't adopt that and larsen didn't last and didn't testify then we moved then you have a continuing brady go no matter what and that's what walter says turn over in his aug twenty fifteen order months before the second trial he said that's when you did submit it yes ok so he did that border to the government say there's a scope only up and through december two thousand and thirteen now ok so it has to be the government's position that he was never interviewed after december thirteenth for two more years to the trial or if he was no one took note it's i'm not i'm saying there are no further or any sort of memorandum on those pretrial interviews and how did you construe his order to not require you to turn over notes that were taken his order said that the government had to produce and this is what was requested a camera and three o two or any sort of similar memorandum i don't think any prosecutor in the world would consider that they would just as a matter of course turn over all of their trial upright notes but  the three o two is that were given to judge waters to comply with his order for all brady giggly oh those three o two were composed based on only trial prosecutors note that's your representation the brief that the only person that took notes with the government trial prosecutors ok so if they then took more notes after twenty thirteen how can you say we don't owe anything to walters because we just didn't tell the agents to generate the rio use whereas we had for two years before well there's a difference i have these notes in preparation for a large amount today i have a good brady assessment of these notes but they are very cryptic very typical notes there the second trial that's the relevant thing in your answer is well we don't have three o two but you made three zero twos out of government prosecutor notes to begin with then you stopped that was the decision to make those it's pretty trial and second and judge walter did not order the government to do its trial notes and i would just like to note in the first trial defense counsel did request the prosecutor's notes relating to one of the witnesses that was the process they have done that in the past to say i actually want the notes from up ito and the obligation there's no showing here that those notes are inconsistent to make a showing there's but there's nothing in those notes there's been no determination by the district court that those notes can to district court didn't have them well ok this is  if this is an issue if this if the court would like the district court to evaluate those notes the government has no objection to a limited man for the court to examine those new will decide if there's going to be a layman it will decide the scope of it i'm trying to understand how the government that this case around was sixteen twenty six two and brady and then the district court says give me all brady so i can look at it and then when you look at it tell me if the following facts are true ok i'm going to ask you several specific facts so the government attorneys wrote all notes for all the interviews that eventually ended up in to three zero to correct yes ok is it true then this special agent lawson who wrote the three o two had to write them from the notes of the prosecutor that's true but he might have depended recollection based on his attendance at ok now that's a real problem for you when i look at history or twos it doesn't suggest he was at any of the interviews do  so how could a man write a three zero two and that i've never seen janklow like this before in my life how does an f b i agent write his report of interview ten twelve pages single space but he we didn't even take notes and he may not even have been there several of the reports that he did it based on the prosecutor's ok now is it also true that the first time he writes the reports is half a year after the interview this is true so think what you've got here you've got an f b i agent generating a report of an interview with extraordinary detail but he wasn't at the interview he didn't write notes of the interview and he writes the memorandum that's given to judge walters half a year later which reviews when sitting in a seat where he's about you waiting all the testimony and he reads these reports a district court judge and he finds that they're not material and they do not need to be unsealed this is not the government making great here this is the government complying with its obligation  reports as it was instructed by the district court for them to make a decision about them to know we have to go in review it all ourselves right that's the situation we're you know this is a clear air right we have to assess there's no clear if they do and let me do let me give you some evidence of why this is not are well i don't know i don't know i'm going to ask if colleagues to do interrupt too because i'm taking a lot but i want to unless that since you thankfully have read all the notes from day one two thousand and twelve to the present i cannot say that i have thoroughly read all of those  that i looked at them in preparation for oral argument but you agree we have to assess if he i mean clear error this or underside since stealing is that is that the body that would examine those notes it would be judge walter i believe we have to assess that he didn't miss i'm grateful that you've read the notes let me ask you a few questions did the defense ever have information that nyan told the government that he was receiving himself five thousand dollars a month from the zetas did they know that i don't know i don't know exactly i haven't reviewed necessarily all of the bates stamp material that they have received but i don't know that that would be necessarily how could that not be good with the guys getting five thousand dollars this is for the first time i this is being raised right now but i guess i think brady and gabriel have been in this issue from day one so i'm just asking you whether you know if the defense ever had that impeachment evidence i would have to file a the doc with the with the materials that were sent out here when they do try to cross them isn't it true that nie and over and over again says you're lying to the defense attorney on some occasions i don't know that he says it over and over he does acknowledge so i'm misstatements that any element of the offense and the justification defense wasn't raised but even in support of that when i evaluate the record there's thirteen witnesses just raising forty nine references in the record that show how violent this data was or how ruthless forty was it a forty so there's ample evidence in the record as far as the materiality determination the point they need to do is they need to say ladies and gentlemen the jury you've heard from mr nigh he implicates my client in being a partner  crime with monday morning with them but don't believe him because he was bribing government officials he was receiving five thousand dollars a day instead when i look at the cross the only impeachment evidence they've got are the statements he makes to the probation officer killed and i and i know but he see how he sees he's exculpate he's telling them i was fearful but instead what he told the agents was i was a full participant by thousand dollars a month from the zetas there's no doubt from the trial record that he is a  admits that he's on the phone while they're ordering hits that are made he admits that he's trafficking drugs across the border he said many full culpability that he's purchasing these horses and is involved in the money laundering so you're saying the impeachment was complete regardless of whether there might have been material impeachment that wasn't turned over i don't know that this is this is definitely not material impeachment it's not clear ok what case do you have that a flip witness was receiving five thousand dollars a month from the conspiracy and that's not material impeachment what case anywhere in the country would say that's not material first of all i don't know that that was not in the disclosure that the usa sent i have not evaluated whether that was what disclosure did the it was say ever send anywhere in the record  his proffer letter his plea letter that he was going to get legal status but i don't think you turned over any of his statements ever now the only cite you gave was to the defense attorney's letter saying well they knew the true friend comment that's the only site that i saw anywhere and as to that point did that did the defense letter saying give me giggle e o that says we received vague reference to true friend did that even tell them  that statement jersey that they the question is did that disclosure indicate that nine was the one that said he heard trevino said we're not true friends yes or no nyunt never heard defendant one person who returned alive from that meeting but they only put in there was no doubt for the jury that nine was prophesying that would be that was profiting from his participation in the conspiracy he was rolling in the money he was clearly earning money from drugs and from the money laundering operation the fact that he was receiving five thousand dollars a month from i mean there was no misconception about the jury about niacin volman and his profit from the  from ny and his cross of him saying you told the government you were receiving five thousand dollars a month that they asked about that specific not that that's not the materiality determination is what's your case that says that specific thing is not what case i can't imagine there would be one well the cases i'm discussing are immature i mean i really like to move on to other things i think we have a disagreement but i'm asking you for the case that stands for that's not material so don't want to give me any case not material in the context of the entire trial sorry it's not harmlessness materiality is did it put the whole case in such a light as to undermine confidence in the verdict and that's even stronger than homelessness argument it's not one piece it doesn't that require looking at the entire trial  does that's why don't go back go back to my point is you know judge walter could have made a materiality is the government's position that even if something spade verbal to the accused you don't just turn it over if before the case you're drawing the case the government decide well i don't think the way to put trials going to play out it's going to end up making a difference you additional five minutes i would want to go i think that you know the record is clear on this issue as far as what the government's position is and and that's why but i did want to address briefly the commingling instruction because i do feel like the briefs maybe misstated what judge walters ruled judge walters ruling was in that case and i hope the court is not left with a misimpression that he felt that he had to give the commingling instruction based on this is court's opinion i would like to direct the  so i just wanted to correct any sort of misconception about what the courts and ruling was as far that and i believe that the court's ruling was reasonable i don't know if the court has specific questions on the commingling or if they're just excited about the brady issue  concern obviously about the brady issue so and i also believe that the government's belief is that the commingling instruction was correct in light of this court's ruling in say so one and as far as my twenty nine to my rule twenty a day letter reiterate that and this court has often permitted to get the giving a permissive instructions and i think that the ninth circuit case cited by the defendant in his reply brief is based on the court supervisory powers not to give permissive instructions in the fifth does not follow that line of cases they have allowed permissive in as it's not unduly shifting the burden to the defendant i would also like to note that even though judge walter did overrule the instruction are a did overrule the objection to the prosecutor's comment it's its instruction to the jury was in a sense curative so it might have overruled time technically but the instruction was very curative as far as laying out what the instruction lies and it was actually very similar to the ninth circuit's holding in houser how it instructed it weyerhaeuser distinguishes it from and it's harder case law so if the court doesn't have any further questions of me i would just ask you to affirm the judgment and sentence thank a murderer or a drug dealer he's the nine is a murderer a drug dealer a liar a thief an extraordinary probably a kidnapper and he's going to get set free in exchange for a line i guess than once if you had the ammunition to make that closing statement pretty much anything would be harmless or in their view maybe immaterial any further impeachment i utterly disagree but it that's pretty devastating closing argument which you built on the cross you were able to make well it wasn't very persuasive with the jury that convicted in two hours i think i think the jury believed no i think that argument felt flat and the reason it fell flat is that certainly no it admitted that he was a criminal but he was like so many cooperat government he was a reformed criminal he was here to tell the truth that was part of his deal and we had nothing really to do challenge of that i know but that isn't really how you presented your pretty quickly argument to us i went off on me just because this is it worrisome area of law all the discovery and when when the government takes a critical witness and assigns people to write notes and generate three up to his later so nothing becomes janks nothing is brady get leo the court at first is asked to take it in camera the government opposes that we're asked to disclose that the government opposes that i worry a lot about witnesses becoming involved or a ball because there's no discovery and then defense attorneys are in a predicament they're in the dark however you've had it all to write your supplemental brief you had everything and you've told us it's the true friend problem and it's the cash payments but the true friend issue you did in your own defense letter you know you said we knew it and then the cash payments when you look back at lawson testifying in the first sentencing that comes out you knew that the cash payment remarks hadn't come up until later interviews so tell me where i'm wrong on that analysis will and let me begin by saying there was some question when you're talking  what they do and the three zero two zero referred and it said they were attaching them and i don't think judge walters ever got them so it mystifies me one of them says that the interview stopping and the i r s is notes will be the rest of the interview but they don't don't seem to be a submitted to walters so it's not something as you could hear that i have any ability to understand on the government side but how does this prove that the two are versatile conviction all we had always in iceberg and i had testified how are you going to impeach him with the ages three or two if the agent has to say i wasn't there seven months earlier when he made the statement the only person that would able that would have to become material witness would be the trial prosecutor that took that it existed we just didn't know it existed but in terms of the fear of what's what's what's critical here is that now you didn't just it wasn't just that one comment that one need because now ends the government's theory was they got off but how does just that he's fearful if he still accept their money and money launderers he still is guilty and has he didn't accept their money it here is why it's important for and i think your premise was he's so terrified he is taking their money now either way no no no no  your argument is that he's fearful he doesn't take their money he uses a t t money yes yes but is it true that in the four three zero two nine and says oh well he got that but they a t t money by bribing pemex officials they didn't even use that in camera they give it in camera the district judge looks at it and says there's nothing helpful here you're saying there are powerful bits and pieces that are helpful here and yet you had some intuition about them we know from your discovery letter just one piece yeah a little piece and what we didn't have was because again you've got to understand that the whole picture of set up forty of this trial was that man's a brutal killing kill this person to kill that person but and this was nyad this was so 's important the theory was it wasn't just a theory this is this is what we said happened colorado like alfonso don't write who is another person who got extorted by the feds colorado used his own money to purchase idea that colorado would be intimidated or afraid of those that scott that he said never their friends that was his testimony at trial and if you look at his statements it's totally contradictory he never want says that colorado instead of forty