morning honors john lemmon for kim walker more the question presented here is whether the government is relieved of its obligation to be truthful with the court when the defendant happens to be guilty and because this court has consistently answered that question in the negative mr walker who is serving a life sentence is entitled to some form of relief that's not the only issue prejudice needs to be shown based on what you believe was government misconduct whereas the prejudice in this case it no i'm going to answer i just want to compartmentalize the prejudice issue is far as the specific ground of relief in the certificate of appeal ability and with respect to the perjury at trial by a detective  disclaim being part of the task force when in fact two weeks later he said it's a declaration in the same court in an unrelated civil case saying that he was a part of the well no he did not the declaration does not say he was part of this course it does it a comes pretty darn i was like ok that's your characterization of it does the declaration say he was part of the task force it declaration says he participated in the searchers which is he goes a little beyond that what does he say i'm looking for because you won't find i was part of the task force in that declaration where you what he says  we've all got it yeah so i mean i would reason i'm asked the question is i don't i'm not sure you made even close to a case of perjury here he testified in the st one that he participated in the searches he said i wasn't i what he said i wasn't part of the task force but i worked on the case so how how it how is that inconsistent with his declaration well what he said was during that scene in the declaration he said during that same time period i was working on a federal wiretap investigation with the e p a and various other police agencies including f b i and l a p d ok and what did he say in his testimony his testimony he said you are also not a and you were also you weren't a member of the v a taskforce answer i was never a member of the d e taskforce i was assigned to him at one point just on a case specific which is not this case that would speak enough at this point but  forthcoming at trial how would it have made a difference as to your client's case we did this is not structural error and that's what i'm trying to say is i don't know i spent we don't we don't either and that's the problem what i'm getting to the nd part of this but as far as specific prejudice from let's assume that's false testimony i can't show specific prejudice at trial from the false testimony i've just been candid with the court what i can show is a pattern of opacity in everything that the government did in this case they withheld material information at every step of the way when they applied for the wiretap when they withheld discovery will sixteen material in the district court when they then misrepresented to this court arguing waiver on the part of my client based on arguments that he would have had to make based on the discovery that they withheld so the argument but their argument for waiver is not misconduct it's a silly argument when i say that a majority of us where your opponent stands up to make it so she knows my opinion about it but it's not misconduct and at the very least it was disingenuous suggesting that it was this engine doing this engine new it is not misconduct on appeal even if that didn't rise to the level of misconduct they were sanctioned the district court for not turning over rule sixteen material which would have been brady material in the context of the wiretap litigation so coming back to the prejudice ultimately the prejudice that i can demonstrate is that this pattern of conduct on the part of the government resulted in my client never having a fair hearing to challenge the wiretap and that's the only defense he had in this case and the district court even noted that when the court was observing about the overwhelming evidence against mr walker the court said and the wiretap evidence was the most concise and take take me back to that so let's assume that mr that the obama had had testified that i was involved in the wiretap investigation which is what he's said in his declaration runthrough may have that did that changes the result in the wiretap and the trial testimony is simply part of a pattern under chapman what i'm saying is that the failure of the agents of papa to to alert the district court to the pending investigations in missouri and in philadelphia the existence of a key informant armando minds the fact they used a wiretap in the zuri the fact that kim walker had been the primary target of the investigation for over a year and that was withheld from all three wiretap affidavits that would have been the fact that that in front of that demonstrated that less means other than a wiretap were asked if you are used to that yes so that would have been the argument that mr walker would have made had he known that those facts existed but then the government with held that material from the defense until it was too late to challenge the wire taps mister and i want to back up even further because you raised this issue  moggs declaration in your motion for new trial but you didn't include anything about this declaration in your direct appeal of mr walker's conviction or in the denial or of the denial that motion walker discovered it when you raised it in a motion for new trial no i didn't well somebody did and it looks like you sure know what the record  my recollection is mr walker filed some sort of pro se motion that his trial counsel attached to the pleading and submitted i don't i don't believe there was i don't believe that my recollection is there was no reference to that declaration to  discovered it when because the record does indeed i'm not sure what the record indicates because it's all appellate record but so right so i when i figure out when you discovered it ok so i believe it september th two thousand and fourteen it could be a little bit off on the date  but it was a year after mr walker's director i feel was a fraud and how do i find that in the record it's you know i can find the record side for your honor but where do you have to give me the cite just tell me what kind of pleading was that it was in an unrelated civil case in you believe is a contradiction or perjury in the testimony that we've already touched on the fact that the government didn't call this witness defendant did the government even mention this witness in closing argument or anywhere at the trial so my difficulty is i don't see where the agents give the maybe the the counsel for the government should have done a better job of disclosing information but the trial judge at the outset of the trial said on the eve of trial rather excluded the missouri investigation and mitigated or completely negated any harm from that i'm still having trouble finding where the problem is today you seem to be arguing unlike your brief that there it's a pattern of all this stuff you know i'm arguing very much like my brief because i state explicitly in the brief that there is a pattern and that's the prejudice and i can't show prejudice without the pattern ok so no i understand but i disagree with your brief on page after page after page talks about the missouri investigation and this witness this testimony that seems to be the centerpiece of your argument other rittenberg of missouri investigation and the government's lack of the government's failure to produce the evidence related to the missouri investigation is the center piece but candidly it doesn't there's no direct connection between that and the trial testimony of a lot thank you thank you very much they please the court would had on behalf of the united states i believe counsel has made two concessions that are dispositive of this case one that he cannot show prejudice from detective ahmed's testimony and two there is no direct connection between that testimony and the missouri evidence the simplest and most direct path to affirm that switch i think is the inevitable outcome in this case is for the court to do what it did and soon our say and go straight to the question him i actually can't your honor there is to his testimony appears to be irrelevant it doesn't seem to have gotten the defendant anywhere impeaching it does not seem to be something that would have gotten the ok it's very unclear why why he was called at all and it's equally unclear how impeaching him would have advance the defendant's case if you look at his testimony the testimony is minor it's peripheral it's not even clear as i think your honor pointed out that the subsequent declaration is sufficiently different to constitute quote favorable evidence because in the testimony he conceded he clearly when he testified didn't recall this search very well it was three the trial was three years after the search but he acknowledged that he had been working on the investigation during  testimony and he was present at both the lander's lab and the s and w removal searches which is really not all that different from what he said in this declaration which is i was working on this investigation  is declaration doesn't say he was part of the wiretap and and there's no evidence that he had any connection to the wiretap so he was defendant's own witness he had nothing of significance to say even if his testimony even if the change even if you consider the declaration a change it was not material or prejudicial and i think your friend more or less concedes that my question is if his declaration had changed would have changed the wiretap workers asian no it would not have changed the wiretap authorization and i think one of the things that counsel why because he had nothing to do with straw owner that was that was when the evidence in this case was kind of made and detective ahmad had nothing to do in anything in the record until he showed up at the end of those searches and then later there was an incident with the torrance p d a month after that so they had not no connection at all to the wire taps in addition i think it's a really a gross mischaracterization to suggest that defendant did not have the opportunity to attack these wiretaps because that's exactly what he did in his st appeal he succeeded in persuading the court that he should be able to admit that you have all of the evidence of the   and it was already completely litigated and lost this court in its memphis bow in the direct appeal directly decided the issue that there was no material miss and no material false statements or saying what you should have done and if you come up on appeal and argue to me that you discovered something after the trial that the district court never saw and never had the ability to consider the importance of i would say we can take that up on a bring it back to the district judge and for what twenty to fifty five did they do exactly the right thing here i'm not suggesting that a meritorious brady claim could not be heard under these circumstances you're suggesting that if there had brought it before we might have rejected it out of hand well no no no what i'm what i'm suggesting is default you have to prove brady materiality so there isn't any case that you can cite that says if you if you have what you consider to be newly discovered evidence that you discover after the notice of appeal is filed you in this case no let me let me finish if you're dumb enough to and raise it and we can look at it and say it couldn't possibly have been material well rejected out of hand but that doesn't mean that in order to exhaust the claim you must raise it on direct appeal that's what that i think the claim we're making there is to whether to klein's st with respect to default we're saying the defendant could have raised the claim that ahmad was part of the team on direct appeal based on agent siders testimony he filed a new trial motion on that basis ok he said he could have now he says i will i could have or i didn't do i lost it on appeal or whatever i gave up on it because it wasn't very good i later discovered the smoking gun for example is not a smoking gun but that's that's that's the merits i later discovered the smoking gun and now i want to bring it to the court's attention because if i only had had it at the time i from my view or was tried i would have won and we addressed it on the merits don't we we don't so you should have you should have you should have brought up the smoking gun on direct appeal in in effect you do because those cuz you would say the cause aspect was met but the prejudice aspect there's a prejudice requirement in procedural default and that is not met that for the same reason that there's no merit to the brady claim error that that's what we review in the twenty to fifty five so we can find that the prejudice requirement for procedure before wasn't met in the direct appeal so that's why we're here on the twenty to fifty five and that's why we're dressing the marriage so now i guess i would go back to my main point which i started with which is the simplest way of dealing with this case is to do is the court did in zero are say look at this a look at this evidence and say it's not material there's there's no way this defendant the outcome of this trial would have been changed based on impunity for de defendant impeaching his own witness who is a peripheral witness at best and i would say a meaningless witness thank you submitted a false probable cause statement to the state court which resulted in the charges being dismissed there was a kerfuffle he was dismissed from his job as a law enforcement officer follow the suit and that suit revealed that i pattern and practice of the entire torrance police department to misrepresent and to withhold facts were guarding informants can i tell you that specifically to the government's other conduct here no i cannot if it's either a tipping point for you all or it's not but i would suggest that my client is serving life in prison for a drug offense and he never had a fair hearing in district court to challenge the evidence that overwhelmed him a trial the wiretap evidence i'm fully aware of the consequences of your client i want to thank you for your efforts on his behalf thank you good thank you for your present thank you mr good hand and thank you i'm sorry thank you mr lemon and thank you miss wood had for your oral argument presentations here today the case of united states versus q mockers submitted