good morning your honor thank you going back and do that and then i will address my comments primarily to the issues regarding  question the reliability of their testimony general and conviction based on that testimony i mean if there is something that confused by the presence of a table quarter how reliable it is their testimony and how reliable is the perception of events as they were tape recorded between your client's company representatives and the elderly victim so we know what the content of those conversations were right you're talking about case agents we still we still have verbatim what occurred recently the company and the victims because it was taped right yes but there's not a by representative so there were other conversations that weren't recorded is that well i think we're talking about complex records of the recordings i'm talking about of the suppression of their recordings that i'm talking about are the interviews with the witnesses by the government so i understand that you're saying that if they were confused as to whether they're really being recorded right that would tend to undermine the credibility of those elderly witnesses right but my question is that may be true with regard there to their ability to perceive or remember what happened during the interview but to the extent that you're arguing that it undercuts what list said to them in furtherance of the scheme to defraud we have those conversations on tape testified that's not on the tape i haven't seen or heard of those tapes not me i think you and i are talking past one and i thought well let me try it again as i understand it the prosecution introduced in its case  certain recordings that were obtained i guess in a search of your client's business premises which consisted of conversations between representatives of the company and these elderly people  which were recorded for whatever reason by your client and those tapes were played at the trial the jury heard those conversations and the contents of those recordings words a basis for the government's proof that these victims were defrauded in some fashion by your client and his co defendants to my right so far yes it's part of they ok so now you're complaining that they're that there were other conversations between the government and the same witnesses in preparation for a trial that they thought were recorded but apparently the government says they were not and therefore i'm still trying to figure out how it is that there would be an  offices and the each witness as i testified i'm talking about of the tapes of the interviews of the witnesses by the government where there may have been inconsistent statements but it may have been we believe there was an extreme amount of coaching indoctrination into the witnesses and this touches upon another issue that goes beyond the pale which is the first contact with the witnesses we maintain that the witnesses were not first contacted by a neutral questionnaire for them to fill out at the government maintains that they were contacted by phone they were informed they were victims there was somewhat inflammatory or prejudicial language used to put these people in out of victims state of mind and if you're talking about elderly discovery the fourth victim who was interviewed said it she had been interviewed in a pretrial interview on the defense claim they didn't receive discovery there were also two witnesses who didn't testify and who were involved condition put forward in the three declarations submitted this new trial motion even if these documents in statements did exist there were three bases asserted for the motion to change back rule thirty three and brady none of those require a new trial in these circumstances and i just wanted to review twenty two of their opening greets that agents backplane turn on me asserted on appeal if there is not a specific request for those documents after the witnesses testified at trial and it's undisputed that we did not have any such requests in this case materials those documents are the witnesses supposedly gave the government and the teeth pretrial interviews were not specifically requested a trial and often pointed out in describing what happened in that case to two one witness the defense during cross examination elicited that there had been a number of pretrial interviews and that during one some notes were taken but made no specific request after listening that information what your have produced a new trial because even if you if  have i don't think they exist what i'm what i'm trying to add to find for your honor is if this issue has been raised in a timely fashion a trial then the gent act would not promotion they were told they had won a large prize and they needed to send money and they were not told until after they spent the money that in fact the money was to buy magazines and the prize was just free for participating in the  and during that call the odds of winning the one in four thousand odds of winning were disclosed and for the first time the victims are told the money used to buy magazines there were each of the victim  witnesses who testified there verifications needs to play the trial there were also other teams play the trial during which victims and magazines never said anything about magazine in addition there was a copy of testimony there was also retesting money describing every single client's file that had been seen as during the search of both of these businesses which filmed it half of the victims almost half of the victims did not receive any magazine did not receive any prize even though they were told in the verification call that they were absolutely guaranteed such a prize so even if you completely advise the testimony of these four and i would say it's actually only three she was absolutely guaranteed a prize and he testified that he made the decision although it was not disclosed in the verification call or in the cries usually because you have to return these documents in order to claim the prize so virtually all to prevail on a new trial motion the evidence has to be newly discovered which means in the failure to learn of it sooner can't be due to a lack of diligence on the part of the defendant induced me there is no reason why these interviews could not have taken place prior to trial the defense decided to go out after trial and interview the witnesses in order to try their see if they could come up with an impeachment material but that is not due diligence and we've got a number of cases in our greece indicating that type of evidence come to a three judge panel and reverse another three judge panel i'm just i'm just going on i believe that that was done and i also believe there was an independent duty in some cases for the prosecution to turn investigator interviewed the witnesses why couldn't the investigator say in the course of the interview you know what if you talk about it to the government agents and at least provide a declaration with an example or two of something that they allegedly told the government agents that was inconsistent with their testimony would stand by what i hear you saying is you know what we did we don't know they might contain likelihood that there is exculpatory material inconsistent statements that might be and in those recordings before you can invoke the protection of the brady rule right t here right on that and i believe that we have shown that given the testimony of the witnesses it together with me and i'm talking about the testimony the with this is regarding the coaching and the preparation  witnesses that the takes what you hear great that is cut i mean there's nothing improper in a lawyer meeting with a witness before they testify to go over their testimony no it means how that's conducted the determines whether you step over the line into