testimony that he typically destroyed written notations of drug transactions was so gravely undermined by the post trial discovery by the government and the disclosure of that document on the defendant to prove with regard to that brady violation that the evidence the tally sheet if you will was favorable to him and secondly that it was material that is that prejudice ensued and as we know from the supreme court's decision in cows versus whitley the test as to what's material is whether that evidence reasonably could be taken in such a light as to undermine the confidence of the verdict in this trial after a nine a jury to discuss materiality somewhat differently the defendant must show that there is a reasonable probability not a possibility but a reasonable probability that the result of the trial would have been different had that tally sheet been available to them to cross examine the government's witness and it's the government's position that the tally sheet at best is cumulative days and as the record reflects that cross examination included the fact that he had a prior record he had a prior record for robbery including armed robbery and they discussed his he was a p was he was cross examined even about the sentencing guidelines in fact they were talking to him extensively about what his very was aware of the benefit he was receiving oh absolutely and in addition to the plea bargain or the plea agreement they questioned him about things such as the fact that he had made inconsistent statements they had his f b i three zero two the first statement that he gave on the day was arrested and videotape they had that they had his grand jury counsel actually had what i would call more indicative or typical of a talent she he had mr candy right the dates the amounts and who those drugs pertain to and of course the tally sheet which we have here in the in the join appendix which is a joint appendix ninety five that's a series of numbers and computations it's not the typical tally sheet that we normally see where would have like chris romano one boy or  why i don't know where well your honor i've been doing this for forty years and i've seen tally sheets quite a few times in typically what they'll have on them is a reference to the type of drug boy being heroin girl being cocaine or or cross examine him even about things such as there was money and this goes to the corroborating mr barrett testified that because of the quantities of drugs that he was selling they couldn't pay a writer right upfront so he would collect money and he would mail it back to the folks on the west coast they actually had it sent to louisiana and he mailed it under the name of michael barrett jr and his name was michael barrett so they cross examine him to suggest that while you were trying to throw your son under the bus michael barrett jr they cross examined him about marital infidelities because he would marry and they showed him documents where he had a coast side for an apartment with a girlfriend or had represented in common a job that he had said isn't  so you start off your argument by saying that this could have been impeachment of them and you're right i guess in the sense that because he was asked whether or not it kept any tally sheets and said no the defense could have been pulled out that exhibit and said w hat about this on the other hand he also said that in just about all other instances and he tally sheets that he would keep he would destroy them so in that sense that would have been entirely consistent with his testimon that's what he did because you only found that one tally sheet that i corrected and there's no indication as to when that was done it could have been y that he had done recently and he just didn't have a chance to destroy it or beyond that what what else what what else is in  the government standpoint not it's cumulative and when you look at it when you compare what happened in that case to some of the other cases for example cots in cars it was a murder conviction well your honor let me just say this way when when judge bennett first took the bench he walked out and he held up the fallacy and he said you mean to tell me this single piece of paper is a tally sheet and initially he said no but that's that's absolutely correct your honor but what the government did is when the government uncovered this like i said i've been doing this for forty years to me this really wasn't a tally sheet but i recognized that it did have some i mean he didn't value so we disclosed it we weren't going to hide invite them to come over and look at discovery or search more materials and indeed as part of the joint appendix you'll see where we provided them not only to search more but we provided them the inventory and admittedly the inventory didn't say tally sheet but it said handwritten documents and what happened at trial was the defense said we don't care about that before charlie so we don't care about that we want to look at the gun mr barrett's wife was a correction  that's exactly what occurred that was the chronology after the trial was over we were preparing for a trial actually of the source of supply out in california so the point is this was available to you or to the fans but neither one of  yes or yes or the the other point i want to make briefly is this the tally sheet while it may have been impeachment from the government's perspective cumulative it wasn't the linchpin to this case there were phone and i need cocaine he also there were eleven calls total there were two on august sixth the day that mr barrett was arrested there were two calls the next day and then there were seven calls so in other words your point about that is that this wasn't typical b the next day he tells mr barrett we need to hit the road meaning we we've got to get out there and start selling this stuff and then on august eleventh which is the day when he was arrested when he showed up where he thought he was going to acquire the drugs he tells mr barrett make sure it's both and then he even says to him i got to run these prices down because he felt that the customers were getting over on mr barrett because mr barrett wasn't charging enough so all of that goes to show that there's a preexisting relationship between the two of evidence because there's always a possibility after every tribe that somebody is going to learn something that they wish they'd known a trial of that they could have known a trial or whatever but so after every trial something may always always come to light but we've been really said no you know we don't run a perfect system but we run a darn good and a fair trial and that's going to be at these route thirty three motions or whatever it is i'm very very rarely granted on i understand that i and i know the judge bennett understood that as well and the government is correct that he started off the hearing on the motion for new trial somewhat skeptically but after a few hours of of hearing he each change his mind i'd like to just get sort of basic and look at what the function of this court should be as a reviewing court judge bennett made of course judge bennett was not the finder of fact there was a jury at the trial but as to the motion a new trial judge bennett did make some findings of fact and those findings of fact are entitled to great deference by this court unless they're clearly erroneous he also made some conclusions of law and some mixed findings of fact and inclusion  and unless the district court abused his discretion those should be accepted by the court and the reason for that is judge bennett sat through every minute of this trial he heard the witness's testimony deep he understood everything about this trial and he was in the best possible the only possible position as a neutral so what are the what are the critical findings of fact that you think he made that compelled that compelled him to grant the motion or  it isn't just what i think he labeled them as findings of fact and one is that the document in question that appears at page well it whatever it is of the joint appendix page ninety eight was a tally sheet he didn't hurt me easy i'm sorry your honor we can look at that as well as he can and understand if there was room for confusion if he took several hours to understand whether it was a tally sheet or not it took him several hours to come to a conclusion about whether this is or isn't the tally sheet how is the witness on the stand supposed to know exactly what it is in a split second i'm not sure i understand your honour's question because the only good question is is this a tally sheet or is it not george bennett starts off the hearing by saying this and that balance sheet and then over the course of hearing that apparently last several hours he says well no i guess this is the tally sheet now something that takes him several hours to come to a conclusion about whether it is or isn't a tally sheet how weeks to expect that it's so terrible arrow or witness on the stand not to know instantly what is meant by the tally sheet and whether those sketchy notes did or didn't amount to one other that was part of the problem was that the is it was only partially legible i think that when the judge got a better looking copy it was clear there's numbers on there there's indications that somebody owes money there's calculations well i mean but the government didn't dispute that i mean in turning over the evidence they described it as notations from the witness in this case regarding drug transactions amounts of money you call it what you want tally sheet i don't care what you call it how does that get you to motion when you try out in light of the way the strop receded the three days of cross examination that substantial impeachment you get up there you impeach him on this because he testified earlier that he had not noted anything you could get him on that and then what the red hering in this case your honor is that the evidence of the conspiracy was strong there was there was corroborating evidence there were airplane trips there were all sorts of things what was what isn't strong is the connection of my client and the others to the conspiracy all of that all of the and i does that how does this tally sheet help you in that regard because absolutely nothing it first of all as was found was a list of license or a list of license tags that had been seen near the crime scene and to the defendant's car was not among them so sort of negative evidence if if there is a written record of the only written record this is the only documentation other than the words that came out of the mouth of a convicted felon that connects mr kennedy to this to this conspiracy so while i don't know that the government would have said that it connected  that anybody to anything i think they would have maybe that or not if they had looked i guess it appears the prosecutors never saw it but i assume the f b i agent saddam probably didn't think it was all that important though i wasn't referring to the to the  calculations and it will either use or want to show that in fact kind of he had no involvement with this otherwise why don't any of the figures line up why is there any reference to mr kennedy or some code name that connects mr kennedy to the for the conspiracy how do what what is there this is only document the judge judge bennett made a point of noting that there was absolutely no documentation to connect kennedy  you know in canada even he's arrested has all the cell phones i mean a lot of them and i just i don't see how you say that the evidence linking this this man and spears he was weighed and respectfully your honor i disagree with something that you said which is that there were telephone calls and talked about drugs there were telephone calls that said i dealers suspect themselves of being monitored and surveillance out right and as a result they go out of their way in many instances who all use code and to  use earlier agreed upon code language that one thing means another you know almost guess where it's a separate language from well that's all true your honor and let's assume for the sake of our this argument that the call was about illicit substance or untaxed cigarettes it could be about a lot of things but the only way that the jury was told that it was about five milligrams or grams that i remember of of  genitor i don't dispute i've you make a good point that it was there to explain all of this to a jury and without it it would not probably would not have had any context to them but i still don't understand how the tally sheet on top of all the other impeaching evidence would have made all the difference such that a new trial is warranted well i go back to the fact that i think it's significant that judge bennett did see a connection because he sat where your honour's are sitting and watched the evidence unfold over nine days so i think that his finding that which is explicit in answers your honour's question is entitle to  significant deference he determined that the document was potentially exculpatory because the whole connection of mr back of mr kennedy to the conspiracy was this history of prior dealings and ongoing relationship if that is be lied by this tally sheet there's nothing on there about kennedy or code word that means kind of the or any quantities or numbers that line up remember that mr kennedy showed up at the mall with no money or very little money and cell phones and pretty much that was it so it's only mr barrett's relating or claiming that kennedy had dealt with him over previously with sales of cocaine and heroin that tells the jury that he's a part of this conspiracy which there is a conspiracy no question about that when you have a piece of paper that he denies there existed but almost a side point when you have a piece of paper the docket that's the only document and it's completely silent about kind of the or anything that lines up with numbers or amounts or anything else that's pretty significant when you say lines up with numbers r t i don't understand what you mean by there's nothing on there that you could reasonably interpret at least in the opinion of of judge bennett to five five grams of cocaine or a gram of horror are all these numbers and who are all these people and how does that help on to has that helpful because at the end of the day potentially mr kennedy is not among them and there's nothing else in this  one or two other people are mentioned doesn't mean that candidate is not involved but it doesn't have to mean that you're on him because he has a lot of customers ok at that's correct but what the standard is that the court has to has to have a reasonable belief that the lack of confidence in the jury's verdict and that's what judge bennett came out of this with  about this she could hospitably make a difference to the jury after three days of basically getting evidence if you don't know it was  as judge bennett recognized and i think we understand your point we're kind of going over the same thing but i have you you certainly made your point thank your honor and i thank you of court for appointing me to the case you have anything f i just want to make a couple of points in response first off when mr barrett was arrested he was caught with twenty five kilos of cocaine and six kilos of heroin he wasn't caught with any kind of marijuana or crack cocaine he had taken delivery in an r kind of like the movie where the millers where they smuggled in the r v a significant amount of drugs in this case the r v had six kilos of heroin and twenty five kilos of cocaine which is consistent with mr canada's reference to  needing both just a couple other points with all due respect to my colleague there's nothing in the record that judge bennett said that these calls weren't in called the tory he recognized that they work and indeed your honour's have those calls and just  i'm going to be very blunt and and cite one or two of those calls in the joint appendix for example a joint appendix four eighty nine mr candy says i've got to run these prices down to you which is a reference again to what the one meaning the quality of the drugs that's what he explained and what was mr kennedy's response i already know now if they didn't have a preexisting relationship and mr baer throws out the name a one or the phrase a one we don't have mr kennedy saying you know what the hell are you talking about he says i already know the final point is that it wasn't just the testimony and the fact that there were no names on there that identify mr kennedy there were other individuals whose names are not on there who showed up who showed up some showed up with money in the hundreds or thousands or the two hundred thousands again their names are on the tally sheet but they showed up to get drugs the jury heard all of those calls which are consistent corroborate i was favorable and that it was material for those reasons i would ask this court to reverse judge bennett's order granting a new trial and reinstate the conviction in the sense in this case thank you  i think you did a really fine job with with the case of presenting your client point of view