good morning and may it please the court my name is your room and i represent a nice robertson before this court going to try to reserve three minutes for a bottle all right in this case the district court erred in failing to dismiss or even instruct the jury on the loss of critical evidence evidence that was destroyed a videotape showing the area where the government alleged the crime occurred it took an act inadequate corrective action after agents and government lawyers violated the witness exclusion or seaquest ration r erred in failing to inspect documents in violation of the jencks rule and miss instructed on the requirements for conviction of embezzlement eliminating the entrustment requirement in violation of due process given the time limits here unless the court has questions on the other issues i'd like to focus on the destruction of evidence issue and the witness exclusion issue as to the destruction of evidence issue ms robertson was arrested on june twenty sixth tw government alleged among other things that on that day she put mail into a car that was in the parking lot of the post office where she was employed the post office had a video recording system video recording that showed the parking area that day the day she was arrested the case agent was advised by the union representative that there was a video recording system in the outside of the post office he ignored that information that video would have shown the car the location where ms robertson's car was after her arrest and she was terminated from the post office and she challenge that terminations basis for the termination was the embezzlement of the mail during july before the videotape was destroyed agent long ten was again advised of the existence of the tape or request for the tape and the import of the tape and again agent long ignored th nation and the videotape was subsequently destroyed now so are you asserting that the agent acted in bad faith i am in this case and the evidence of bad faith is agent long tense admission in this case he testified in this case that he was aware of the tape and he was advised that ms robertson was alleging that the tape showed that or that someone had planted evidence in her car so the standard for bad faith is one in which the court looks at whether the evidence was apparently was it whether it was the exculpatory value of it was readily apparent and in order to determine that i think it's the young but decision and this court's decision in talked about evidence that might have exonerated the defendant that's the standard for determining whether it is apparently  if the agent is advised of it and knows of it and ignore said and it's destroyed bad faith is established in this case how did the district court rule the district court in this case ruled that there was no standard well i think agent long to admissions in this case he testified that he was aware of the evidence and knew that ms robertson was alleging that it had been planted this case is really analogous to the zero gosa decision by this court where this this isn't something he took and destroyed this is something the machinery of self apparently not to his knowledge plays over the case that that decision is clearly erroneous because it was the same set set of facts in this there goes the case the border tape in that case was automatically overwritten every thirty days and by the time that the defendant requested it while it was still in existence and the government didn't act on that and it was it was a rose you raised in the kind of the normal course of things the same thing occurred here in this case the agent longton the case agent investigating this case specifically was advised of the existence of the tape and he didn't act and it was overwritten in the ordinary course so i think on that fact these these cases are very and now yes but i think here  the bad faith has also demonstrated because agent longton was aware that this was relevant to what she was alleging would be her defense that was that someone else put the evidence there and applying the test for determining whether talked about it and i think that's the circumstance here the agent didn't know what the exculpatory value and he didn't act on it but even if this court were to find that there was no bad faith the district court in this case still erred because it i don't know whether there was in that case i i'm not sure if in that case the agent testified that she was aware of that or not i think i think she did and i don't know for sure but let's say that's the case is there testimony similar testimony about our agent monckton in this case i don't think there is in this case we need just to follow up on judge wallace's question is to find that the district court was clearly erroneous in saying that there was no bad faith don't don't we have to be able to say that not only was he aware that there were cameras not only was he aware that there was potentially exculpatory information on there but that during the window in which he could have acted he knew that this evidence was going to be destroyed isn't that the chain of inference is you need in order to find  don't think you need all of those things to get the inference your honor and i think it's because of the standard from youngblood that it might have exonerated the defendant that the agent was aware and i think there was in this case  you know some evidence that the agent did not act according to what would be standard police practices if the agents advised that the defendant is alleging a defense that is that someone else  you know committed the actual crime in this case standard police practices would seem to include the actions of an agent who would act on oh i don't think there's much question i think they should long term was that at best he was negligent  not seeking to obtain the tapes but i'm just saying in terms of what we're trying to determine is whether he acted in bad faith right there are some deliberateness there that kind of become aware that there's evidence that potentially helpful to the person you're investigating  rather not have that evidence surface right if that's the kind of inference we have to draw and so agent longton did eventually get around to checking on this in september and so don't you have did you have your kind of the burden to show that he knew by then that the evidence would in fact be gone well i think what we have from agent longton is more than negligence it's more akin to deliberate ignorance which this court has found to be an affirmative knowledge type action here the agent repeatedly is advised there's a videotape the videotape is there she's asking for the video tape because it will show she didn't do it and he didn't do anything about it and i think that when something is repeatedly received a copy of the post office union request that was sometime after how long after the event was i believe he testified it occurred on genuine skinny july fourteenth which was within the thirty day window where the tape was still available so obtain it before it would have been erased i believe that's the timeline your honor and so based upon that you feel the district court was wrong and that he was really intentionally hiding this w evidence by letting it go i don't think he has to intentionally be hiding it i think what it has the what the standard requires is that there's bad faith in that he's aware of it and he doesn't of it the tape or what the tape contains well no one saw the tape so he doesn't have to know what's on the tape what he has to know is that there is evidence that might exonerate the defendant and here the tape might have exonerated the defendant and that's what she was alleging but even in the absence of  faith the district court erred in refusing to give a loss of evidence instruction counsel before we go there even if we agree with you that the district court erred why wasn't any error harmless i don't think when it comes and i've looked at this issue a bit i don't think that there is a requirement when there is destruction of evidence that it be harmless but even if it's a harmless error standard in this case the government hasn't demonstrated that the evidence was harmless the government portrays this as a caught red handed kind of case what the evidence actually was in this case was that the agents saw on a videotape they were watching her in the in the post office they saw what they thought was her putting mail into up a bag that was hers case it struck me that and i watched the oral argument that the court talked about what the remedy is when there is a destruction of evidence and it's dismissal here she is appealing the failure of the district court to dismiss and the district i believe even though as i said even if there is a harmless error standard i don't think the government's met it here but implicit in that case is that prejudice to the to the defendant in this era goes the case to me all throughout the discussion is the fact that this evidence would have been of assistance to her well and i think that's part of the bad faith analysis is how important the sevenths was and here it was the evidence of the actus reus of the crime as the government alleged it that well but  missing from this record is any indication of what the significant evidence on the videotape would have been and that's the same in there goes to because no one saw the videotape here there's a videotape that would have shown the area where the government says the crime was committed in saragossa it would have shown definitively whether or not the individual was there or not so what would it have shot what would the videotape have shown in this case that male had been placed in her car as that is that her argument i think that with the video would have shown is whether anybody approached her car that afternoon when the government says she put mail  there was a definitive statement that a person was or was not in the line at a particular time but here the argument is perhaps somebody approached the car and that's the standard is whether it might have exonerated and here it might have exonerated and that's what she advised the government was the import of the tape and that's why i think in this case there's bad faith i'd like to really reserve the remainder of my time for rebuttal all right thank you thank you we'll hear from the government  please the court my name is peter cause the nats i'm from the u s attorney's office in phoenix there was overwhelming evidence of the defendant's guilt introduced to this trial and the judgments and conviction should be affirmed for at least three reasons the district court properly fan out and that there was no evidence of bad faith there was no conscious intentional destruction of evidence to gain some sort of tactical advantage over the defense and any apparent value of this evidence was not apparent to agent on ten ok let's let's stop there because agent long ten did testify as your opponent has said that he did become aware in the window the thirty day window that mrs roberts and was claiming that the video would show that others and in particular the government had planted the letters in her car so he he testifies that he knew that as of july fourteenth he knew also by then that there were in fact cameras that could could show whether that allegation was true and i guess with those two facts established by his own testimony i'm not sure i see why this is distinguishable from zero goes ok well first of all agent longton did not testify that he was aware of this camera system at that time he was aware of the union's request in this grievance proceeding but you know no on the day that she was arrested he's standing outside in the parking lot now first of all it's just not credible that an agent i simply has at least a little bit of experience would want when he sees people pointing up on the wall to a camera in a parking lot that he knows there's a crime scene you're just not going to persuade me that he somehow would have remained ignorant until september that there was even a camera there i just think that's absurd so he's standing out there was people discussing the fact that there are cameras there that will catch capture what was what happened that afternoon i think there's testimony that someone actually pointed out to him where on the wall the thing existed so the fact that he didn't testify that he knew neither here nor there i think it would be clearly erroneous for the court to say that he somehow didn't know so well just take my i mean you're not going to persuade me on that so just take it that and i'm not saying that's where my colleagues are but if you're going to get my vote i need to you help me with this so take it as a given that he knew that there were cameras and that on july fourteenth he becomes aware that she's alleging that what the cameras will show is that you you all the government planted that evidence in our car so on those two facts why is this case distinguishable from servo's it's distinguish r has a different view but there were credibility issues about this at the plaza area here and in a trial and agent wanted did express lee testify that he was not aware of the camera system and that it wasn't pointed going to maybe you will persuade my colleagues of that but i'm not persuaded and you're not going to persuade me that he remained ignorant of the existence of the cameras if they were pointed out to him the day she was arrested while he standing out there in the parking lot so so also that so assume that he did know and that he did become aware in the thirty day window that she at least was claiming that the cameras would show that there was a scope atory material on there so how does this case things were from geragos so he testified that he  wasn't aware he didn't realize that this evidence had potentially exculpatory value and in contrast he says when we can i just read you what he said i requested information from our labor relations specialist vicki bal she told me that the union was making some assertions that we planted evidence that's on july fourteenth right so how does he not know that she's contending that if you all would get those videos they are going to show that it wasn't me who went out there and put that those letters in there it was you guys she told that on july fourteenth so it's at this point in the investor and maybe really the core of this is she was really how relevant is this evidence to the case now that defense has argued that this would have somehow completely exonerated the defendant but really what this relates to is only one of the seven charged mail items as to this one item the sinfully protest letter the government contends that the defendant place that letter in her car on this afternoon in question this challenge doesn't go to the other six items yes but wait a minute if you're going to try to say that if the video in fact had shown a government agent planting a letter in her car that somehow you all still would have won convictions on the other counts i just don't think that that's believable especially given the suspicious circumstances under which the letters in her purse were later found that felt right we have to keep in mind also your honor that the defense unidentified third person that we don't know of did this so she does know she doesn't know who because she didn't get the tapes right her contention at least back on so fourteenth was that the tapes would show which which ok which takes us to the to the next significant reason why this case is not zero it goes up in zero goes it was abundantly clear that the tapes were tapes of this pedestrian crossing line and they would have been able to corroborate the defendant's complete defense to the charges about how she was acting out in the wind here the whole subject matter of the preliminary hearing involved the potential usefulness of these tapes among other things and the record is clear that the tapes were by all accounts essentially useless the evidence a deuced at that hearing showed that this external system was installed not to monitor employees in the parking lot but to monitor this canopy made of copper that covered the parking lot secondly michelle trujillo the then manager of the arcadia station testified at trial that most of the time the view from camera five of the parking lot was obstructed by carrier vehicles which were parked in front of the camera that said s e r seventeen thirty six third each and long to testify that he went back with the person who had installed the cameras and conducted an investigation and a bridge view of how the cameras were set up there was only one external camera that's even pointed in the direction of where the defend its car might have been parked that day and as to that camera it only showed the car area at a distance and only showed  certain areas it didn't show the rear of the trunk of the car didn't show the passenger rear entrance to the car and the video was of such dubious quality that it would not have been able to anybody to identify it's who might have accessed her car and that is in the opening prefer of the defense they claim that this information is so important because it would have shown definitively in conclusively whether the defendant or someone else had placed evidence in her car that's completely contrary to  the record and the defense never meaningfully challenge that evidence that was offered at the preliminary hearing on this point in syria goes in contrast the government did not attempt to challenge the defense contention that the video would have been potentially useful evidence whereas here it was amply challenged and the district court had the benefit of reviewing all of that evidence and testimony in making his daffing i don't think that's what the court said the court just said that i find that agent monckton didn't act in bad faith and that has nothing to do has nothing to do with what the tape may or may not have shown because he didn't know at the time he let this evidence become just be destroyed what was going to what it was going to show but the court findings were limited to that it pages two fifty four and two fifty five of the excerpts of records emitted by the defense the court goes on to recognize that the contents of this videotape was it was it speculative and completely unknown whether this would have shown anything that might have been of potential assistance to the defense and so that also was a key part of the district court's finding and that was supported by substantial evidence there's there's no indication that that was a clearly erroneous conclusion based on all of the evidence that do stick in there so is that sort of a harmless error kind of russia now well we can do it what pages by the way did you say harmlessness because really for three sexual reasons this error if any one is harmless first of all because this information was essentially useless to the record shows that there was no indication it would have exonerated the defendant or proved what the defense claims that's reason number one for homelessness reason number two for harmlessness is that the defense was fully able to press this issue before the jury they were given very wide latitude to go into this and they did in their opening statements they inform the jury about the existence of the system an agent longton not obtaining the evidence before it was lost they cross examine each and want to not once but twice he got sick in the middle of trial and had to testify twice he gave two directs and two cross examinations on days five in ten of the trial at which points the defense raised this issue repeatedly the defense also examined the  manager of the arcady station michelle trujillo about these issues and offered its own witnesses from the union one at liberty in verse lewis it called a witness for the agency responsible for and for installing the cameras to incur and invest and examine him so it repeatedly press these issues before the jury that's reason ember to why the error was harmless and reason number three is simply put the evidence of this defendant's guilt was was overwhelming the jury was shown a thirty one minute video taken by the o i g agents the afternoon before her arrest for the video and the agents observed the defendant return not once not twice but three times to the collection hamper rifle through the collection hamper and pull out letters that look like they were greeting cards and then take them back to her desk and put them into her personal belongings under the kelly case in the other cases we cited in our brief the crime of investment was completed at that point the jury also heard from numerous witnesses the end ficta about gift cards that were stolen from me all processed at the arcadia station that were directly tied to to this defendant days in times that she worked and the fact that her adult daughter redeemed these cards at retail establishments in other parts of the greater phoenix area and were those it was the evidence related to the gift cards such that you could tell that it was the very gift card that the person who sent the letter had purchased it wasn't just like some generic target or what not at all because from the victims they were able to get the gift card receipts and then they were able to go to these retail establishments target and wal mart and they even pull video and sales records that showed the defendant's adult daughter redeeming these cards so the evidence was very clear and definitive and this was evidence that agent launching developed initially in his investigation as it as it continued over time with respect to the one letter that the defense is making this exoneration argument about the letter that the government alleges was placed in the car that afternoon the evidence is also very clear that that was it was the defendant who was responsible for that as well and i'll explain why that test letter was placed by a white g agents on the defendant's collection route at about two o'clock the afternoon of her arrest it was put in one of these group collection boxes where the carrier needs a key to unlock it and take out all the group mail testimony a trial showed that the letter was placed on her rib two o'clock and then it was found the next day in a handbag in the back seat of her car the notion that somebody else somehow got ahold of this letter even knew the white she had placed it in her collection route and obtained it from the defendant putting in her car is highly spits it's it's fantastic all and the government's burden is to prove guilt beyond a reasonable doubt but not beyond all conceivable doubt so for all of these reasons any potential a responsibility to see if this was junk sanct material they there was testimony about it and they talked about it and at one point where the judge is asking and must look after the actual statement itself i don't know how you get around johnson i mean it's pretty clear i can see why it be a long nice circuit might be different but it isn't and it strikes particular evidence and then remake the ruling your turn thank you your honor so the first answer is that more recent ninth circuit authority recognizes that do so in the more recent case law such as the hanky case from the year two thousand michael's case from one thousand nine hundred six in the alvarez case which the defense cites from two thousand and four in those cases the courts find that in camera  view isn't triggered intil the defense makes a foundational showing and what we have here it's in the record it as e r arsenical mental excerpts of record pages nine hundred to nine hundred two where the relevant testimony is located agent longton testifies that he jotted down the phone number for this witness mr cundall but he didn't recall making other notes and there was no follow up of questioning to establish any foundation that he had created a sort of narrative really janks act type statements substantially verbatim recitals of the witnesses narrative account of events or statement adopted  are made by the witness there's no foundational information about that so there's not enough to trigger in camera but if you limit that if that were true johnson would have been decided differently because they didn't talk about what was in there but  i'm not saying johnson was the best case he should have been the case i'm saying it is the law that governs us and in johnson you had the same situation and they talked about it but johnson says you should a look at well much so apart from these more recent cases i think johnson is also distinguishable because the notes there were arguably far more important and in that case we were dealing with the agent's notes of his arrest and interview of  defendant himself and that's something that's far more substantive than merely jotting down the contact information for a road that went west the question was whether there was enough description by the agent of what the grunow would say whether there's enough there to be janks and the judge decided no there isn't but then johnson says you got it you got a look in that situation i mean i'm not being trying to be critical i'm just saying how can the government distinguish the case well it's distinguishable because the central city than i would some johnson were far more important then they were here we're dealing with the initial contact just that first june second telephone call where agent longton you know initially makes contact with this witness gets his contact information makes arrangements to meet with him to obtain a copy of the letter that was altered and in our case the government went on to disclose him on tunes entire narrative investigative report which summarized his communications with m and his search warrant affidavit of course as part of the record which also contains the same information so stand by the moral question is in addition to information about i'm going to see is such and such a date was there anything said about what g said happened and he'd take a note on that and that's what the other side is is talking about that that's jenks knew should have been turned over then we'd have to decide whether or not that requires a change in the case but the issue itself is hard for me ok well we would submit that there there just wasn't the same kind of foundational showing that there was in the johnson case here and moreover there's another case called both shell where the ninth circuit said that any potential error was harmless where the defense never argued that this disclosure issue would have really made any difference in the outcome of the case and that is exactly the situation here there were there was no argument that this was critical information that would have changed the outcome it's just notes of that initial contact and here we had so much evidence on here how extensive were they does the record reflect what the notes were where the page to page is a couple words a house that's it where they because in johnson there was a written report of an interview and the circumstances of the a recess which is a lot more substantial than i get the idea we're talking about here could you help us with that in terms of how extensive the notes were sure well just looking at looking at the record what we have is ancient wantons testimony and the questions that he was asked by defense counsel in all the testimony shows is that he noted contact information a telephone number for the witness made arrangements to meet with him later you know did you make any other notes and he says no not that i recall and fell right into your representation of the record is that the only information contained in the hand written notes with contact information contact information is what he testified to at the trial so in other words it's not what we don't have from the trial testimony is an indication that the notes were really as substantial as the notes in the johnson case which dealt with an interview of the defendant and the circumstances of the defendant's arrest do you do you agree that this was jencks material no because it didn't there was no showing that it rose to the level of chance at x statements in the case  we cited in our brief was that a rough notes jotting down of scattered information here and there doesn't rise to the level instead you're really looking at sort of a witness narrative statement and i understand i i understand and i'm i'm convinced you're you're right least but in this case but then you would distinguish our johnson case because it was the same situation but the judge was shortcutting he said is there anything else in the statement and then he takes the word of the prosecutor which is fine except johnson says you can't you have to look at the statement and if you were writing the opinion you would say johnson doesn't apply in spite of this language because because more recent ninth circuit case law emphasizes the need for a foundational showing that this information contains johnson statements which we don't have from the record here and because to the extent that there was any error any error was harmless there's no indication that anything might of come of this would have really impacted evidence the heart of an inside of the defendant guilt on this target gift card that was taken from the one daughter remember this is the gift card that the defendant's adult daughter is seen on surveillance video tape yeah that target actually negotiating and knowing she uses her own credit card it's part of that transaction so it's the evidence is overwhelming so the question is whether or not we can excuse the conduct based upon harmless error or is johnson seems to say the judge must know of course we can't change johnson i mean they've got to go and bank to do that so it's a little bit difficult to understand but i think i have your point and i appreciate your you're taking time to explain th both i think the jencks attack and the destruction of evidence act and in this case demonstrate that we're dealing with speculation here when it comes to the tanks act material the district court never looked at the record that the notes to see what they were so the government's assertions about the extent of the notes i think is not anywhere in the record and it leaves this court to speculate which is why i think in johnson this court said it needs to be remanded for the district court to review those records to determine whether there's a problem with what happened just review the records just review the single statement the notes themselves and we don't know how long the notes are because i don't think the record indicates how long the notes what did the agent testify to about the extent of the notes what did he say what  testified to was that he interviewed mr goodell and he called him and was discussing the target gift card and going back to that and i don't remember the details of it i apologize but he was discussing  the use of the gift card in his conversation with mr going down but i don't i don't remember the details of it i know what about the notes what were the details about the contents of the notes i don't know that there was much of a record made on what the extent of the notes is your honor there was a discussion between the record discussion between the judge and the prosecutor and then and then he gave that to a place and the judge asked a question and he relied upon the prosecutor was it was a disc i think there was some discussion about him making notes of his contact where he was making arrangements to meet with him to to get information about the gifts card but beyond that i apologize i don't remember the specifics on page nine hundred it says that you make any notes or anything regarding the june twelfth communication that's what we're talking about correct yes and he says no i don't recall i did so well if you think we should rely upon to say that there were there was i apologise i believe that when the defense lawyer got up to cross examine and i don't have the record site in my head i can provide that to the court afterwards i believe that there was questioning by the defense lawyer whether the agent made that he affirmed that he did she requested those notes and then that was the discussion about the notes with the prosecutor so again i apologize i can provide that to the court afterwards but i also would just like to no that in this case the government has the burden to prove beyond a reasonable doubt that the error of the loss of the videotape did not affect the verdict and that's the standard for harmless error when it's preserved in this case the government emphasizes that there were multiple that two counts were based on mail that was seized from the the car that day but all of the mail seized from the car was admitted against her on all counts as an extra couple intertwined for all for be evidence her there was no evidence found on her and it was only the evidence in the car that was linked directly to her having been found in the car finally i'd just like to know that the government asserts that the video would not have shown the car i think it