violated its discovery obligations in this case that is not in dispute those failures prevented the court from properly considering and ruling on the march motion to dismiss which was based on government misconduct in the civil lawsuits the revenue agent in the case crystal kerry met with david chin aka mr he's accountant in november two thousand and eight two weeks after her request to refer  this audit for criminal investigation was declined in her activity report agent carey fabricated a statement of mr chin aka implicating mr he this is outrageous and became the basis a basis for the eventual criminal investigation but it never happened this was not apparent to mr his defense until june of twenty fifteen when the government turned over m grand jury testimony in which he denied making the statement to agent care given that the entire march motion was based upon agent carey's misconduct in the audit and the majority of the oral argument provided to mr he in advance of the court hearing in april on the march motion to dismiss this discovery failure along with other discovery failures a late produced e mail so this was produced in time for trial well this is different than a case where you try the case evidence is submitted or the agent testifies and then you find out i just said i just said that this is as i said this is different i understand i asked the question i said this is the fun know i mean you know if you well i did yes right yes here's what would have happened if the court would have had the totality of the evidence remember the march motion to dismiss was style three ways a motion to dismiss based on the government misconduct alternatively a motion to suppress under tweel in grunewald and third a request for an evidentiary hearing when you receive the information how close to but i think i used the word you i take it you did not try this case i did not try to case your ok but no motion was made to judge monet to go back and revisit the earlier motion correct not prior to trial trial was any effort made by trial defense counsel to postpone the truck now you're on but again the focus on the trial i think is misplaced you have another question or story at trial was trial defense counsel able to cross examine both the green jury witness and the agent in light of the material produce just prior to trial no you're on the government did not call agent kerry and that's why this is different so is there something to prevent the defense from calling her we believe there was your honor in the sense that the request to call agent with the trail of america is why i think that she had it would have been not a jury question as to her credibility when she was not being proffered by the government for any purpose and that was a question that should have been  a motion to suppress before the court so we had made the request and asked for the evidence or emotion and judgment always opinion first of all the hearing in april dealt extensively on the question of do i need to have an evidentiary hearing her opinion said mr he fell short that he need to make just some showing of age and carries intent it in my own defense counsel me any of the brady if this would have been presented to the defense in advance of the april hearing judge more weight denied the evidence you're hearing because we need to make some showing of the criminal intent  before but that's not the world we live in i mean you can have a motion to suppress motion dismissed if you lose it and then have a time you don't get to go back and reconsider the motion because at this point you have you know a motion to dismiss is a shortcut to the voice of trial but once you have a trial leave had the best deal process available no system so that washes out any  you you don't have to say look i got convicted fair and square but i should have one of the time county i disagree on a couple points your honor i understand your point you know you have any case supporting the proposition that march coupled with the motion to dismiss the government's discovery failures prevented the court from evaluating the tweel motion at the time under that tweel motion we would have made three shots that the agent had a secret criminal intent and i respectfully submit that any united states district judge presented with evidence direct contradictory evidence from a witness saying i never made that statement that was then used as a badge of fraud in the criminal fraud referral demonstrates a secret criminal intent you just made a wonderful case for why your predecessor console charo defense counsel should have moved at the point that this evidence was received to reopen the motion to suppress but that was not done i undertake can't go back and reconstruct that we can go back and cure choice errors made by counsel but your honor i believe the court has the authority to do so because which court both this court and can remain and this is to be considered novos a motion to suppress the evidence at the time the state of the indictment at the time consisted of a very large portion of the case that's referred to in our briefing as the clear conduct a look at me as a former prosecutor as this i think the same question judge which is you have any case from any circuit anywhere that says that in a circumstance like this you can go back and revisit a motion made prior to trial but your best case you know i think my best case is the standard set the emotions suppress is considered to novo the brady giglio cases have a have a of course a sanction of i'm looking for a case similar to th were the evidence was presented and for whatever reason no use whatsoever is made of that trial you can see the direct yes there's a trail on the merits in the jury considers the what i think your honor is that you asked for a case similar to this i don't think there is a case similar to this because what's unusual about this among many things is that the clear calm part of the case to which we can point to evidence being gathered subsequent to the criminal intent five days prior to trial clear calm was removed from the case so that's why there wasn't evidence introduced but beyond that i think that the broader picture here is is that the court was unaware of the statement or the contested statement of mr to knock at the time who's responsible with the government you're on i would have thought your predecessor counsel tro defense counsel is your response well for not bringing it to the court's attention he didn't have it in in april your honor when the moment the moment he got it and was able to  what he had he didn't bring it to the court's attention correct that's correct on ask you something else assuming you are right about all this  because we have an affidavit from mr chin aka saying he never made that statement there's been no affidavit submitted by the government to the contrary that's the reason why we needed evidentiary your ask you know that you're asking us to do something here i was going the next step a saying well i should not have happened we have had the ruling from the district court as to making findings as to which version of the testimony was correct you just want us to believe the one was correct that's not true your honor it's not my obligation to show what would have happened it's my obligation here to show there's a reasonable probability that the outcome of the proceeding may have been different and proceeding being the mo that's right which and even if it's trial if you present a united states district judge with testimony of the damaging nature of this and i don't want the court to minimize the knesset the magnitude of the statement this was a statement from the accountan saying mr he doesn't save receipts he chooses to do things by hand shake and roll the dice if he's audited that then became if bajor fraud in the real criminal referral with an editorial comment from agent kerry saying this is very incriminating statement by the taxpayer c p a that statement is being challenged by the witness alleged to have said we wanted the opportunity to put that before the court i exhibit to the united states district court judge given that challenge to that significant piece of evidence which was so significant that the government in the grand jury testimony asked agent asked mr about that statement i asked him twice when he said he didn't say it because it was a badge of of me but wasn't presented or because it was important to the government at the time it became a criminal investigation it was important the government at the time they were presenting to the grand jury and then of course they didn't present it to the trial because it's not that didn't say it your honor ok so it sounds to me like that statement to the defense in time to present it to the court such that it could evaluate whether to hold an evidentiary hearing and say you can't use that statement haro which they don't use that's that's one possible sanction your honor we don't know that doesn't mean that the court doesn't give the defense an opportunity to make its case to question a witness whose credibility has been questioned and we did not have that material in time to put it before judge moore way pretrial again without the ba please court larry ton for the united states to try this case i did you are you the lawyer per true i was one of three lawyers yes they were you one of the lawyers that made the decision not to produce this information until five days before true i would say yes what's your excuse this was not brady oh this was brady or get think we'll decide that but that's what what is your excuse for not producing it until five days before we produced it as a jenks statement of a witness that we expected to testify at trial that's davidson aka we did not believe that this was exculpatory in any respect we did not present any evidence along these lines to the extent it was good cleo it could only be impeachment material as to crystal carried the auditor whose activity report indicated that he did make the statement i would point out also that in the grand jury testimony judge hawkins he did not deny making the statement he says i don't recall making the statement that's the way the question was phrased do you recall and he says no i do not recall did you inform judge disclosure was not being made it was made in the normal course as a checks disclosure ok what is the answer yes or no we informed judge moore way when we produced this information to the defense description of what it was a description of what it was but we did not parse through and highlight the particular statement here and your honor if i may i understand where you where the court is going but if i may i don't believe that this was  y i would submit to the court that you have what is a contemporaneous statement or it running a log the activity report the statement is made by chain aka to the auditor as recorded in the report he later the old crap or only use a different description if you would you if you look at a document as a prosecutor and your reaction is oh my god that goes to the defense whether you think it's brady thanks or hyperbole it goes to the defense and goes to them in a timely fashion but you guys that chose not to do the right well we did not you know i i might note that the understand were here about the impact or the result of that you've heard the questions we asked counsel for he mr he but in my mind it does not excuse your behavior your honor if i may step back first i would like the court first to take note of the discovery that was provided it's in the form of the february eleven twenty fifteen discovery lettered of yours in the supplemental excerpts of record starting of page four hundred seventy eight there were ninety five d v d s provided and two hard drives provided with literally how i think it's hundreds of thousands of pages of documents it's not like we're playing hide the ball here i would also point out that if your honor looks at the exhibit lists that we filed it shows that there were multiple memoranda of interviews that were provided it also one thing that the record material the d v d s etc that you just described that was provided long prior to trial was when it was you were focusing on what was provided five days prior to trial which was the all of the grand jury transcripts to when did the grand jury set this investigation took a period of years when did the testimony of that we're focusing on  latter part of two thousand and nine the indictment was brought in two thousand and fourteen it was in superseded twice in two thousand and fifteen to answer some of the court's earlier questions were maybe to add to your comments there was no prejudice because the indictment covered tax years that had not even occurred at the time of the audit the defense i think conceded earlier and it is a fact that not a single piece of evidence introduced at trial came from the civil audit except for one particular ten one thousand nine form that showed the payment of i think six thousand dollars to in the suits that was deducted as a business expense and that issue was entirely undisputed during the trial mr he them assume and everyone agreed that the payments made to that person were for personal massages and that they were  deducted the focus as is normally the case is judge hawkins you well know having sat where i am and been a u s attorney the focus was on his state of mind the intent the willfulness it was not on whether or not he received the massage there is no harm we had a three week trial they had a well oiled machine working the defense for attorneys who could raise things immediately acknowledging your comments judge hawkins and regretting that it wasn't turned over but with due respect it's not like it was a secret to them they had access to mr chin aka they had hundreds of exhibits your honour's can see from the exhibit lists that not a single exhibit other than that one document came from the civil law to file you can see that many of the events that were the core focus of the trial had not even occurred such as the purchase of the six bedroom house in cottage in santa clara used for the defendant's college dormitory costs so that he wouldn't have to incur those such as the disney world trip with the family members going to see the parks and state the enema kingdom justified by a false memorandum that occurred long after the audit occurred such as the take he trip to see a hula festival that was supported by a false memorandum having to do with doing and inspection of an undersea cable that had not occurred such as many of the expenditures on the loan to shareholder account which had not occurred at the time of the audit so my point judge hawkins is except in that it would have been preferable to turn it over and accepting that that lesson is duly noted and will be learned there's no harm they had access to it they had access to mr  hearing i would say at about the time of the tweel hearing but a little before when we had a superseding indictment i was just coming into the case at that point and i made a comment to which mr he the defendant took great exception i said well i expect there will be a continuance since we are in march and the trial is in june and he got up and he was very upset about that and he advised the magistrate judge under no circumstances would there be a continuance so i raise that only because they had the opportunity to do that and instead they wanted their day in court which of course was given and in the big structure of things again if i may all of this is relevant only to the  tweel situation is truly a very narrow circumstance that isn't replicated much as demonstrated by the case law it's where basically there is a criminal case being investigated under the guise of a civil law to it and where there are affirmative and intentional misrepresentations about the nature of the inquiry and judge hawkins resulting prejudice and they fell far short of that both in march and then again when they renewed it even having access to all of the materials that they are now complaining about i think judge who's in c says how do we know the judge would have done anything different she had it all before her consistency point out of my recollection is it was you and if if it was not with all respect to my friend and your colleague mr perot that's on them i mean that was when when they had it and they had sat through a three week trial with all of the evidence presented to the judge issued a very thoughtful searching and impartial order going through all of the evidence saying here's what i ruled on in march here's what they raise as new issues justifying reconsideration i see no basis upon which reconsideration should be granted and she goes through the same analysis within the tweel framework where is this  aka the accountant had testified and the auditor who is at the heart of all of this did not testify because we didn't use anything from the civil audit file and one of your honor's had asked could you have called them  defense could have called her there is no prohibition against calling her if they thought that she had some evidence that was excluded vittori or otherwise helpful to them one or two points of clarification on some details judge hawkins the testimony of mr to knock occurred on august twenty first twenty thirteen before the grand jury and contrary to what mr tong indicated it wasn't a simple don't recall he was correct in saying that the way the question was phrased it's on page five seventy four and five seventy five in the record in which mr osborne then the assistant us attorney asked because this was important to the government quote do you have any knowledge of the fact that during his business operations mr he sort of got a reputation that he preferred to close deals with a handshake rather than with documentation answer no you know anything about that answer no question ok i have here this is a report by the revenue agent of a conversation they purportedly had with you want to read it to you and you could tell me true false for everyone to say about it and then quotes the language about  question do you recall anything like that answer no so i think he was pretty clear that he didn't say that he then submitted an affidavit as part of the post trial motion specifically disclaiming making the statement and to mr tong's point as well this was considered as part of our post trial motions so i am just your point so when he says i don't recall you think that means no i did no then one prompted with the statement that was attributed to him he was then asked do you recall anything like that his answer was no because that was the call of the question i thought the question but the prior question was contradicted and we think that is judge hawkins point out so i want what i was not questioning you know you have any knowledge of the fact that during his business operations mr he sort of got a reputation that he preferred to he had talked about keeping receipts and other forms of documentation and that mr he was aware of the requirements but chose to close deals with handshakes and would rather play the odds of being audited rather than keep receipts closing the quote do you recall anything like that answer no so our view is that's giglio material i'm sorry what you just read is from the grand jury testimony as i'm saying i understood paraphrased the statement attributed to him in an effort to elicit the testimony that's the first question i can read that again do you have any knowledge of the fact that during his business operations you and i communicated you have now give the false statement attributed to was that mr quote mr he was aware of the requirements close quote but chose to quote close deals with handshakes close quote and would rather quote play the odds close quote of being audited than keep receipts and that's at the record except excerpts of record three forty seven and what is that you just read the quotes come from that comes from the fraud referral report in which agent carey credited or attributed that statement to agent as to the civil not criminal nature of the audit we believe has occurred the affirmative misrepresentations occurred in august of two thousand and nine your honor we detail those in our brief  specifically age in carry on august eleventh two thousand and nine this is excerpts of record five one two told the taxpayers representative she was nowhere near finished with the civil audit when a week prior there was e mail traffic saying that the agent was now working on the potential fraud or for hours she said that the taxpayer may have filed quote false returns right that it also occurred on after that is eleven august fourteenth yes trying to carry in these gathered a lease from clear wasn't clear water you're calm you're on a clear come as a board of water supply and provided some answers to kerry in a response to fax questions dated august fourteenth those facts questions had to do was clear come correct yes your honor that charge was dismissed five days before trial yes so therefore whatever evidence was procured by clear calm or regarding clear calm after the statement you still when the march motion in april hearing on that motion exhibit wasn't part of the trial it was not your own ok thank you