the last case on for argument is united states versus a good afternoon your hours may please the court my name is michael kush or present mr arsene connection with this appeal i also represented him at sentencing before judge buchwald and was however not his trial counsel or involved in his case prior to sentencing your i was going to start your honors i was going to start with the st point of my brief which is the rule sixteen violation as we allege however that it was an interesting segue from the last case where there was such overwhelming evidence of the defendant guilt in that drug conspiracy that i figured that would be a better place for us to start i would love to start with the rule sixteen so just looking at moral sixteen it requires the government to disclose to the defendant and make available for inspection copying or photographing certain evidence now putting aside those parts of the evidence that came into the government's position on the eve of trial and focusing instead on the evidence that the government had available during the period of time shortly after indictment can you identify any piece of evidence thing government failed to disclose in the way of acquired by whole sixteen year honors your honor the point that we make with respect to the evidence that was in their possession and was it's the record is made it is clear is possible that the videos were not turned over counsel mr r c s counsel says that his reading of the government's disclosure letter didn't clu video the government tried to walk mr bonner park counsel through those portions that they thought were the most relevant but what from a defense standpoint how we're disadvantaged is the things that the government wants us to see to make their case in chief are not necessarily the things that we want to see to show our client's innocence as well as other perhaps actors who could be the person that the defense the government thinks is the bad actor in this matter  so i think that the video the videos are extraordinarily troubling the way that they were turned over to mr bonner appears to be troubling as well hidden within it not hidden i apologise for that term the way a phone dump works some sure ours have seen are folders within folders within folders and mr finkbeiner makes a record in that transcript that i referenced that he didn't understand that there would be videos within there and didn't understand exactly how to open them so i think that the videos are the most  that the videos were in the government's possession now i believe that there was one phone or maybe two phones that were dumped at that later date but the ones that concern the stash house that i believe are in their possession since the beginning government to make them available for inspection and i think as i understand it the government's position and i think judge buchwald found this too that the government did make them available for defense there is video and buchwald is very clear in her record that the defense counsel should have thought that that was video i don't necessarily know if he conceded that he should've seen that however that's  government's argument as well as which buchwald found below yes your honor thank you but what we're trying to you know even even moving beyond the technical violation of the sixteen there you know the judge buchwald says this is a screw up on the government's point the way they turned this material over you know there was some of the files were corrupted some of the were not able to be reviewed what we're trying to deal with here is what's the remedy that the court should imposed and what i suggested core is that they should have been excluded i think that the evidence is not only is it so the government asked me to point to some prejudice they cite to cases that asked that we show substantial prejudice and i think that i can point to four different areas of substantial prejudice by the late disclosure some of these materials were technical records they didn't allow the defendant that three week period in allow the exculpatory video that might exist that you can see in those materials is gone at this point rd i think that some of the evidence could help the defendant determine whether or not he should apply guilty this was discussed at the february hearing with the court bonner brought up the fact that you know when i see the evidence i'm able to have a much better discussion with my client about whether or not he should go to trial save the government the expense and then finally i think that the most important thing is that some of the evidence that was turned over resolved around these ip address tracking summaries i think that this is the the lynchpin in the government's case is these ip addresses seems like this is the way they tie mr darcy to this case and there's some contradictory evidence about who may have been searching or how you could say it was him but the fact that some of the summary is turned over this late right before the trial prevents m from getting into the heart of that evidence perhaps consulting and retaining an expert to come into court on his behalf and talk about the inconsistency is with that tracking talk about the technology of ip address locations and you have the defendant's admissions the facebook evidence the other statements that he made showing his his guilt there's nothing like that in this case there's a photograph of mr r c carrying a box on his shoulder that's the direct evidence against him aside from the cooperator testimony the boxes never seized the boxes never searched no operator testimony is pretty damning as i believe the cooperate testimony is contradictory and points and self i pronounce your name correctly yes thank you good morning your honors and may please the court i am nathan ran and i represent the government here and i represented the government at trial as the district court found there was no rule sixteen violation in the prosecution of our say the government did disclose the existence of all the rule sixteen materials in its possession and make them available to the defense for inspection and review as of october two thousand and sixteen  shortly after the defendant was arraigned in this case now the only thing that the defense highlights as materials that were in the government's position possession as of that time they were not actually produced affirmatively to the defense at the time or these videos  with respect to those videos there's two separate categories that i think we're getting blurred together a little bit in the defense argument the st is a single surveillance video taken of the outside of this stash house where the defendant was seen entering that video was approximately five hours long but only about five minutes of it included footage of the defendant the government did produce an october th scene a detailed law enforcement report that provid narrative description of what was viewable in the video including with time stamps identifying the times at which the defendant appears in the video and enter the stash house along with the leader of the conspiracy and then subsequently the time stamps at which the defendant  the stash house along with the leader of the conspiracy a short while later mr coursers argument or at least a portion of it as i heard it was but there may be other things on the part that don't include the defendant here mr r c that ma the defense may be able to use on his behalf in defending his case either as a basis for cross examination or pointing the finger elsewhere and if you accept that argument and certainly it's the case that the defense was entitled to review the video in its entirety and given that they were on notice of the existence of this video in october of two thousand and sixteen they were certainly able to request to see the video at that point in time but even if you accept that they didn't really have notice until it was i do video itself was actually produced in february of tw eighteen even if you accept the defense needed to view the entire five hour video i would submit that producing it two weeks in advance of the event scheduled trial of february th was more than enough time for the defense to review that video and certainly the fact that the district court granted an additional three week adjournment on top of that to revive a total of five weeks for the defense to review the video and make any decisions about whether some additional investigation was required was certainly more than sufficient to provide the defense adequate time to prepare for trial if the defense in the course of that five weeks period in which they had access to the video itself and the ability to review the five hours of video had identified some avenue further identification they certainly could have called that to the attention of the district court but they didn't do so and even here on this appeal we don't hear the defense saying we saw on that video some indication that there was some other person that we would have liked to find or something like that so there's simply no suggestion that even if you thought there was a rule sixteen violation by the fact that a report of the video rather than the video itself was produced which i don't think is accurate under the actual text of rules and even if you accepted that the district court's remedy of a three week adjournment to give the defense time to review that five hour video wasn't sufficient to allow the defense to determine if additional investigation was required which we don't accept it if you then get to the question of substantial prejudice i don't think there's any showing in the record of what the substantial prejudice could have been given that the defense has now had that video for years and there's no indication that any further investigative steps could have been taken based on that with respect to the there's a nd category of videos that were introduced at trial which were videos taken from forensic images of certain cell phones that were recovered from coconspirators coconspirators of the defendant in the course of the investigation and there were really just two cell phone videos introduced at trial there were brief videos showing the manner in which the cocaine was unpacked by the conspirators when it was received concealed in these packages that were shipped through the united states postal service again those were short videos that they got the government specifically identified for the defense in that production in early february of two thousand and sixteen and again as as we've noted in our brief  voices from those seizures and also specifically in the letter to the defense the government said if the defense wishes to inspect any of the electronic devices we will make arrangements for you to do so now we acknowledge that it's ordinarily our practice and policy to provide forensic images of any devices that have been image in this case some but not all of the devices had been image earlier and they were provided until february two thousand and sixteen that's not consistent with our usual policy but it is certainly not inconsistent with rule sixteen which merely requires that the government provide the defense with notice of materials in its possession and the opportunity to inspect those and certainly that was done here both in the invoices of the seizures that were produced and then in the government's discovery letter specifically highlighting those electronic devices and offering the defense the opportunity to conduct an inspection of those so there's no violation of rule sixteen there again to the extent that contrary to what the district court found this court were to conclude that was a violation of rule sixteen the district court's remedy of providing additional time for the defense to review those materials was more than adequate to address any problems caused by that violation and again even assuming there was some problem there there would still be the issue of whether there's any substantial prejudice from the delayed disclosure and the defense doesn't identify any such substantial prejudice there is simply this conclusion reassertion that perhaps some additional investigation of those cellphones would have uncovered some unstated evidence and that simply not enough to make out a claim for substantial prejudice from that what the defense does attempt at benefit is what they describe as four areas of prejudice in his or all  the other ones i don't believe were so the st thing that's identified is that there were technical materials that may have required some sort of expert consultation i'm not exactly sure what's being referred to here in the forensic images of the cell phones that were produced the materials that were of issue at trial at least related to text messages that were easily reviewable related to these videos that i've described the government did not introduce any technical evidence such as g p s data or anything else obtained from those cell phones and the defense has identified any such data that they believe would have been relevant to this case i note that the cell phones were cell phones that were seized from coconspirators of the defendant so it's highly unlikely that technical materials on those cell phones would have been relevant or material to the defense in this case then there's a suggestion that somehow the evidence had grown stale but i don't see how the defense can claim that forensic images of cell phones would somehow be affected by a period of time delay between when they're reviewed and when they were those or images were initially made the data was intact there's been no suggestion that there had been some problem in the transmission of the data or the storage of that data then the next issue is one that was raised in the district court which was the issue of whether the defense's decision to plead was somehow affected by the fact that the discovery wasn't produced or wasn't produced it was disclosed but it wasn't produced until shortly before trial rule sixteen is tailored to in the way the cases describe rule sixteen it's really tailored to the defense giving the defense an adequate time to prepare for trial it doesn't speak to the defense's plead to citizens and i don't think that the case law and so port that as a cognizable basis for for finding substantial prejudice as a result of a rule sixteen violation i haven't seen any authority to that effect to the extent that there was some issue there the district court recognized in the dent in that we filed in connection with our brief that the only plea related potential problem with a delay in disclosure is that the defendant decided after reviewing that disclosure that the defendant did wish to plead guilty there potentially could be issues relating to the degree of credit the defendant would get for acceptance of responsibility sufficiently in advance of trial but as the district court noted in that and that's a footnote on page two of the agenda to our to our brief any such prejudice could easily be addressed in at sentencing and it could well be that the defense would have a good argument for getting that credit notwithstanding the fact that the police was later than it necessarily may have been if the defens received those materials at the time so i don't i think that even if you gave the defense the unprecedented ability to claim that there was some substantial prejudice with respect to their decision whether or not to enter a plea and i also note that the defense made no indication after receiving this discovery that they were interested in entering any plea that could have been addressed by the district court and there's no suggestion that the way this case actually proceeded was affected in any event with respect to that and then the final thing the defense raises this issue of the ip evidence the government didn't use any ip address data at trial beyond what had been disclosed in october two thousand and sixteen we discovered later in time that there was some additional data on a separate database maintained by the united states postal service and produce that an abundance of caution but as we explain in our brief that didn't actually a fact the ip address testimony and evidence that was presented at trial all of which was based on materials that had been produced back in october of two thousand and sixteen the defense was well aware that that was an important component of the government's case at least as early as that initial discovery and there's no suggestion that the defense was unable to prepare defense to that unless there are further questions will rest on our briefly the four points that i raised here these are highlighted in my brief i would refer to page eighteen where i say that the late disclosure prevented him from investigating and presenting evidence to prove his innocence as well as further on what's important about the stillness argument is not that the forensic images were stale it's the evidence that you can see on the forensic images could be stale as your honor just mentioned to the government my argument is that perhaps within those five hours of the stash house surveillance there is a person who looks just like mr r c drive in the same toyota camry around shaking hands with mr munson to lopez or some other evidence that that could prove exculpation or at least tend to show innocence rather than guilt with respect to his appearance at that alleged ash house the technical data that i referenced is not only that i believe the ip addresses technical data and  the witness who testified about their usefulness and how they can be linked to mr r seized guilt in this case is technical but also they were vehicle detection records that would tend to show the location of vehicles that were connected to mr r c his car as well as a car of his ex wife in those things do require technical consultation and perhaps expert testimony to try and refute the presumption that the government's trying to use those items for and so i would urge the court to find that there was a violation here and that the exclusion of the evidence was the only reasonable basis that the court should have done and i do see that there is substantial prejudice here i think of how court here in this argument i've highlighted from the court in the luminous record to the court to to search and i've tried to provide some guidance on that if there's nothing further i rest on the brief thank you thank you both will reserve decision in this case and i will ask the clerk