finding that certain evidence is not material ok to you which if you're going to argue that the rule isn't the truth here is your answer look the position of the government is the ninth circuit doesn't require that unless there is a specific finding in the district court that it was not acted because the courts were imposing hyper technology hyper technical jurisdictional requirements on the government before the courts would allow the government to off in our laboratory if you know congress fix that for at least try to fix that by allowing the government to repeal whatever the constitution would permit and there's nothing in the constitution that prevents this that prevents the score from exercising jurisdiction over this and your background on it is the only opportunity government has of attacking this court order because if they lose they can't attack it if they win it doesn't make any difference and the government was faced with only a mandamus seems to me that that the statute clearly is trying to give the government an opportunity to bring to the court his purposes are his word to construe it liberally construed as fact in its purposes is there anything in the history of this craft tells its purposes other than what i've been talking about which is kind of obvious repeated insistence of our appellate cases that there be some specificity beyond the bald assertion only occurs in a case where there has been no contrary finding of the district  apply the rules of law how canadian but never specifically addressed whether the rule should have been extended over what you're saying is that we should ignore any case where the district where we have said that you must be district court contrary finding you're saying because you're raising wouldn't this case any case in which we would go back to look at the facts were a statement of requirement of specificity has been made by this court that because there was a motion to stay in the district court during the time of the government attempted an appeal in the district court in response to the motion to stave made a finding i don't recall how it came up in that's been too long ago but i assume there to a finding was made before it got to us would it be your position that if here in the district court when you filed here thirty seven thirty one if the district court had held a hearing and made a specific finding on the issue that you wouldn't have not have jurisdiction am i think then we would have to make  and then at that point you couldn't just have the very certification so what you're saying is that that comes closer to the statute that the bare certification is sufficient except in the loud harker adrian's situations where the district court has made a finding then you have to make a finding that trumps the district court but we have to make sure i threw out a showing that would that would be sufficient to for this court to exercise  would be consistent with the other circuits except for the position the situation where the district court makes a specific finding then you can't use the very certification you have to make the showing necessary merits it is well sort of a district court may exclude evidence in a criminal case only work finds a violation of a constitutional provision federal statute or specific discovery order the district court may know made no such binding with based on presumed violations of the march fifteenth two thousand and five discovery order that required united states states to produce a finalized list of witnesses and its real sixteen expert witness disclosures by september thirtieth two thousand and five clear in the circle of the servers that if there is a discovery order the district court has the ability to manage the specs of a large case like this and if there's a violation of a discovery order the court adhere to a pretrial discovery order and we just saw the washington case before as well you were sitting you got a court if you don't comply with the discovery order and filed now the government has a special position or and it is a criminal case but here the judge is up front trying to manage a very massive case so that the people you were intending to vindicate as you started out with that there's a full and fair and orderly opportunity so that you work case comes in an orderly fashion letting like wandering in the case for granted at the last minute finding witnesses were being dragged in with no preparation or whatever in the district court isn't tit do it seems to me it's in one's interest to try to go along with what the judge is trying to do and if you think he doesn't have the authority to do what he's doing the up front about it points taking on it also point out th that even if the district court couldn't force that order we did not violate that order by continuing to see how witnesses that or if you interpret a constitutionally permissible matter only requires us to disclose witnesses that we you i'm sorry about that you're not trying to adjust the microphone i think by any account this was a massive prosecution and certainly one of the biggest cases in the district of montana less than a month after the indictment in this case was return the parties inform the court that they intended to introduce thousands of exhibits a trial that they would call at least one hundred forty witnesses and perhaps as many as one hundred eighty witnesses to testify live in court and that before they even got to trial they were going to in a criminal case that are not placed upon the district judge in a swivel pays in managing large litigation i'm not sure that that's true your honor i really think that this court has recognized and particularly i would point to the baker case delayed disclosure that's what was about in this case did not violate any constitutional provision federal statutes specific discovery order and any other recognized right except perhaps the rule sixteen moreover the fact that rule sixteen the same specific remedies for its violation eliminates any justification for exercise of supervisory power to create any other remedy for we hold therefore that the over the government of laws and rules with me that we will and we are that this would be different we understood that we would run into a large sort of criminal case but we know that's with the constitution and the courts would have the authority to exclude evidence if the government had violated a specific discovery order and in this case i think it's i think the government would be in an untenable position if they tried to argue that it hadn't violated the march fifteenth schedul order that case certainly recognize the courts in the first instance has the power to enter ordinary pretrial case management orders but second it specifically said the court has no supervisory power outside  sixteen in this case and in several different ways it refused to turn over material evidence that was in the possession of the investigating agencies in this case including key evidence collected by the environmental protection agency which revealed a substantial dispute among people in the government over whether or not airborne as festus posted danger based on your exposure and that's clearly material to this case and the government refused to turn over this internal agency documents to the defendants the government also violated will sixteen because it didn't fulfill its reciprocal discussed or rather reciprocal expert disclosure reports the district court in its november twenty third order exclude witnesses that the government had found after the fact it only chose to enforce its pretrial case management order upon a demonstration both that the government had failed to comply with its discovery obligations in good faith and we pointed that out in  specific discovery order and with will sixteen and i think in this version that everything the district court judge did was under rule sixteen i think in this case in addition to operating under will sixteen the district  conference at which the government specifically represented that it was prepared to go to trial in september of zero five and when the court took out a calendar and said give me a date for when you can provide competent and complete expert disclosures and s her thirtieth the government expressly represented to the court quote that would be good and the court wrote that down in its calendar and memorialized it in a pretrial order and i think having entered that water with the consent of the government when the government failed to live up to its expert disclosure obligations order with the consent was it was in the stipulation but under will seventeen point one it's within the power of the court to memorialize the parties agreement and then after the fact order and that's what it did here based on the expressed representation is that the government provided she would in open court and i think it was perfectly appropriate and certainly in a case of this size and complexity for the court to enforce that order when the government neighboring districts and made arrangements to borrow visiting judges so that the additional third of montana's caseload that he wouldn't be able to handle once this trial began wouldn't get stole if this trial unfolded and i experience that courts routinely enter pretrial case management orders whether it's under rules to get the cooperation of the government whereas the authority from the government of well i would argue i  questioning the government the government in this case complied with it along the way and yes it said we reserve our right tag witnesses but the fact of the matter is when the district court him back on march fifteenth and entered that order which by  going on will be insignificant unless an objection is made by the government is that your position i'm not sure that i recognize that you wrote the god who opinion i'm i'm not sure that when i read that case it's as broad as you're trying case was because it found that the records that had been developed as a result of the utah state traps trash search warrant within the actual control or procession of the government in this case you have diametrically opposite factual findings by the district court that the government had announced its intention to withhold documents that plainly were within its actual possession or control and again given the task that was facing the district of montana and frankly not just the district of montana but the surrounding number of occasions to keep the september eleventh two thousand and six trial date firm so our charles seen this is gearing up i know the government has as well but everybody is ready to about in montana beginning in september and take this matter to trial for to a district court order compelling the government to disclose its witnesses instead it involves a convicted criminal defendants challenge to a pretrial order compelling him to disclose his witnesses and i think it's a very important to recognize the difference between those two circumstance the government that's first in a criminal trial when it goes to the grand jury and presents witness testimony so it knows long before the trial date arrives who would intends to call and despite the fact that the government had had several years in which if the government didn't well it's in part that the government didn't object to it but i would also like to point out that every other federal circuit court of appeals that i can find the second circuit the third circuit the fourth circuit the fifth circuit seventh eighth tenth eleventh and d c circuits have held that district courts in appropriate cases have the discretion to compel the government to disclose its witnesses part of trial and a holding in this court that district court  lack any discretion at all in any case to order the government to compel its witnesses prior to trial would put this court on the wrong end of a very very profound circuit split and become the only court in the country that has taken that position on the record and i think that there's ample reason in light of what we've talked about in this case to avoid reaching that conclusion here as it's been ongoing program they're finding more witnesses all the time and it continues on  this case it's important to recognize again that the district court only enforce that order and only to work with the governments characterization for have been shut down its investigation after adjudicating that the government had violated will sixteen and will sixteen itself provides the authority for an exclusionary sanction i think that the second point and i want to make sure that i say this before my time runs out is that in this case the government hasn't found the smoking gun in in fact if you it that goes a little bit further than rule sixteen allows the finder stand correctly you say that's because there's no objection but but didn't the prosecution made clear to the district court that it's an ongoing program and they may have witnesses beating the trunk here but it's not just that the government didn't clearly object on the record here it's that the district court found that they had been dragging their feet throughout the course of the party's discovery exchange that they had engaged in bad faith and if they had violated  that i want to point out that seven point three which is incorporated into the criminal rules in the district of montana you can move for reconsideration on the basis of new facts at any time and the government didn't seem to have much trouble coming up with a list of new witnesses in its  opportunity to present those to the district court without improvidently trying to take an interlocutory appeal to this court it could have gone to the district court made a demonstration that the witnesses that wanted to call were truly on the vailable and absolutely critical to government's appeal to this court on the suppression of that events was pending the defendants moved for dismissal under federal rule of criminal procedure forty eight on the grounds that the government unduly delayed the trial and it just happened that because the defendants had made that motion under a different federal rule of criminal procedure at the district court of pine on the validity of the certification but my understanding is the way that will thirty seven thirty one certification is working is that there are really no different the notice of appeal there filed in the district court in the first instance but they're designed to enable this court's appellate jurisdiction and this court at the end of the day is the ultimate arbiter of whether or not an appeal was providently or improvidently taken by the government and here again until it's reply brief which deprived u one seven eight i think the co control government turned over all documents and studies within its actual custody possession or control and the district court did not find otherwise the newly discovered documents and studies that issue here fall outside the scope o that all documents and studies that the government discovers are excluded whether they're newly discovered or not we moved for reconsideration in the district court and there's court denied the consideration on this on this report no we should just assume the district court is hard hearted and so stuck in the sand that he's not going to recognize the fact that the government didn't disclose or turned something over that it didn't do that didn't e said you turned over everything that was in your actual possession or control i've been a couple they since i've gone back but i remember there's one of the orders direct the lawyers to i thought he was talking about the government's overly restrictive view of what it believed to be its discover disclosure obligation under rule sixteen that if it wasn't in your possession it was in some other agencies are you saying you're beyond and you did in fact turn over everything that he