same result which is dismissal of the indictment i'm looking at this from the perspective of safe cash as an agent of the united states mature will address the united states standing alone in their own responsibilities and i also am going to focus on the exculpatory nature of the evidence as it went to sentencing and miss sherwood as the lawyer who tried the case he's a lot more adept at this will address impeachment and guilt innocence issues safe cash was an agent of the united states they did something that was quintessentially a government function a forensic computer evaluation that they could every company that has a fraud of this sort and posed on it  do investigation it seems like a pretty good idea i think it is but they wouldn't have done it is what the facts of the show that in their case they for whatever reason never printed out journals from their a t m they did not keep these records so these are not regularly recorded business activities for instance of the government said hey give us your business records and they said here this is that would be different but that's not what was happening here moreover so i don't understand your first answer ok they conduct an investigation because someone took money that wasn't theirs that's pretty normal right for a company like that would that be utterly irresponsible to not do that you're right it would be but in this case they testified they didn't have the ability indeed they had only a den of fide suspect transactions at one a t m machine which i'll call petro express it was the government that exercised its subpoena power which will call it coercive power to subpoena the defendant's bank records which under tennessee law were records that safe cash had no right to it and so they then turn they had made a report to to the authorities about the klein and then they were investigating in the authorities under took another action which was to subpoena the bank records yes so if there were a problem in your estimation with does it make you an agent when you're running an independent business investigation and you report it to the police and the police say oh well we have we've gotten their bank records and we're saying this in other locations if the if the company then uses that information to submit their own insurance claim help we understand why that makes him an agent of the investigatory agent of the government because they were gathering something that they did not regularly gather one to begin though those banquet they didn't regularly gather because they were only looking at one machine all right and so now they know as soon as they know that other machines might be indicated then they undertake that it's their own investigation don't play wouldn't wouldn't wouldn't their shareholders be on happy if they knew that there were many more a t m said had been invited that way and the company hierarchy did not investigate it i think i think the record may show there's two owners of this and one of them is the one investigating but also i think your questions really important because they didn't do it that's really important to know they didn't do it till they knew about it oh no they actually they failed that's so important here they failed ok the bank records identify eighteen machines and we've extrapolated on this twenty to one ratio that every time these gentleman withdrew money from one of those machines we should multiply it by twenty to say loss but they only found the nomination change or any records at three of those eighteen she needs three of the eighteen i'm still i'm sorry i'm still back on the agency question ok and by invading the next arguments territory yeah i mean we can hold on it's a good point that you want to talk about agency or you want to talk about something else well it is about agency in my way it is that they or doing a forensic exam for the government ok it forensic exam that's incredibly crucial to these defendants right and this is part of my work is there and all the while you're explaining that is there evidence in the record that the government thought that they were doing the forensic investigation for them they absolutely aged eaves i believe testified i just took everything they gave me he was that's that's that's a different question a question that's a different question is there evidence in the record that the that the police or the investigatory bodies say ed or understood or thought that safe cash was doing the investigation for them i think could you point me where in the record i won't give you the cite but i will say at the evidence fair hearing they testified that in state court they were having a hearing where they thought everything was going to be resolved in the police came in and they said hey we've got more bank records you need to go look at your machines and see if there's more ok so i think that's one that's what it was in state system and then secondly this is interesting in another part of agency you'll see in the government's discovery responds i tell the defendants the a t m surveil a bill for inspection right normally when i'm told that something's available for inspection i go to the u s attorney's office they lay it out on the table in front of me that's normally it's drugs guns whatever it is in this case available for inspection actually meant safe cash hasn't which turned out not to be quite true but the government was allowing or keep being the evidence in the hands of safe cash and they were saying hey we agree this is evidence that you all are entitled to and it's available for your inspection but by the way safe cash has it and i thought your main fuss was that seventeen of it these eighteen a t m machines were destroyed it case what evidence on the record shows that the machines were destroyed by safe cash two and a violation of the government's obligation to preserve evidence under brady  what i mean what why the record i thought showed save cash destroy these machines because the government decided they're under the americans with disabilities act that these machines had to be written available for sight impaired people and it was easy to buy new machines and refit these old ones is there any evidence to the contrary of lot of these machines were destroyed no i think that the machines at least according to the record that is why the machines  destroyed that's true and so that would go to about what had no involvement in that the situation that was just save cash is business decision i replace these machines to comply with the americans with disabilities that but safe cash after they'd exercise control over these machines or their own machines exercise control over obviously and they've gathered very selective information which again i just want to point out we know they didn't gather everything we know that because for i'm fine but answer his  question so you're you're right they had an assistant simple reason for the destruction of the machines but that doesn't matter under this separate claim i mean well it's a true about a claim any ultimately there's two ways of looking yet you just put this under your breath right now right this is the point of his quote you have to clear this hurdle we can ok to talk about other things for the next five minutes but if you don't clear this hurdle they're not going to do anything for your client so it's really a good idea to explain why this is government action it's government action because safe cash was made the friends examiner in this case they were vested to do something by the subpoena power that they could not do otherwise and that even if they acted as the government is agent for the forensic investigation that's a separate issue from where the government's agent to the government was telling of the destroy the evidence well i think this this is important it's both destroy and failure to preserve they claim they looked at eight hundred machines they claim that but they didn't gather the information their eyes did all right i mean it's like a police officer and i am over time so you just stop a police officer sitting there looking at the evidence it's right there he's got so the got the government was supposed to come in and put an order don't destroy the machines is that which is that what you're i think they should 've absolutely that's what your argument is they absolutely should have told well they should have gathered all the information i mean ultimately these machines had data on the data could have been preserved i mean we're all used to you see so many friends  extent material evidence that was material material exculpatory and at least potentially useful and i think it's on machines is that what you're referring to the electronic journals that are on the machines and the actual a t m s themselves so there is evidence at the end evidentiary hearing that without it i can get into this in more in depth that there was an inspection of the a t m as was required to determine what type of functionality the a t m s had and whether they could actually perform the denomination changes government with when it comes to stuff in the a t m s i have to believe that's potentially exculpatory right you don't know that that in fact i would have thought it was frankly incriminating i think your clients who hockey these things were destroyed is my guess but put that to the side this has to be about potentially exculpatory and if that's true where's the evidence about faith because it's just not worth talking about this if you don't have evidence about yes your honor and i would like to address at some point about why i think it was material site in the record that the government relied upon save cash to do this investigation and it's their record is replete with that and i can give you to struggling with the distinction between taking their evidence and relying on the evidence that they gave him versus charging them with the responsibility and as i understood it that mr tenet was making the argument that to collect birds a did you know if it's just a person preserve existing evidence of which they were aware but your argument does not depend on the agency between saif and the government absolutely correct ok so absolutely these a t m s contained potentially exculpatory information potentially useful information if you use the language of jobson the worst about the backplate is if you look at all of the cases all the six circuit cases or even if you go back to is earliest trombetta where the cases look at are it bad faith is defined as official and less which is something you know just terrible all are a conscious effort to suppress evidence in every case that i've looked at what the government i mean with a court right to destroy the court to look at is but they didn't the government didn't destroy it they allowed the destruction of it they had a duty to preserve it because it was extended evidence they  lee was the digital forensics agent for out of the national office there's an entire manual dedicated to the department of justice on how to preserve electronic evidence a special agent knew this he knew that the entire journal record not select portions of it would need to be preserved so we could say the thirty ninth page spread sheet that save cash gave the government immediately shows in that evidentiary hearing shows that some of these withdrawals were not fraudulent absolutely were not there were only denomination changes for eight count why would the fact that there are some innocent withdrawals that the russe who are innocent as well you the sixty right so if a family member with the same a t m card just takes out money there's no denomination change it's innocent like this it is innocent they listed it as a project transaction on their thirty nine page i thought the evidence and i am correct isn't the doesn't the record indicate that the government excluded those six dollars and thirteen dollars or one hundred thirty or whatever could not indicate a denomination challenge by the time we got to trial the government had cleaned up this save cash thirty nine page document and they had eliminated everything that wasn't possible thereby leaving it sounds pretty good leave leaving every single forty dollar transaction on there is a fraudulent transaction as if just because it was possible that it happened during a denomination change in the truth is there only a nomination change for eight counts in the indictment and i do want to address your question about bad faith briefly the government in this case just said we didn't need that we just want to save cash gave them and in right the court went through and they said the electrical evidence was destroyed by the government only after an independent fire investigator determined that none of it was ripped relevant to this case and the warehouse was overturned one hundred twenty thousand square feet we don't find it was back then for the government to have destroyed this evidence if you look at cody this was this was the video from the bank robbery and the police preserve these videos momentarily because they knew this convenience store had deposited di stained money into an account they realized that gas money had absolutely nothing to do with that bank robbery because a dying stain money came from another account so they destroyed the tapes what the court said there was it's not that great because they determined it wasn't relevant evidence will soon be shel case i don't i don't know if we've cited this one but the detroit police department letter a video be destroyed just because they thought it had a different statute of limitations it was an innocent mistake the one thing i don't know which one of you want to do this summer would be really interested to hear from you and from the government is when we have that customary thing happen what's an appropriate time for brady to be triggered and i'm just interested i deal you'll do it in a way that helps your good morning i may have please the court amanda harris on behalf of the united states your honor i'd like to began with the first point here that we discussed earlier with with the opposing counsel and that is agency there is no agency in this case and therefore the definitive due process claims fail as a district court but i mean at some point on what's the answer to the question i just asked them at some point when you have if you find fraud in your company  you're pretty likely to turn it over to the government that's ok nothing wrong with that what happened when does brady arise at that point the government now has a presumably it's investigating it may not have control over everything right the company still has can trol the government and the private actor that's the wages he works for fourth amendment claim you're focused on the fact that the a t m swore destroyed by the company without the government's involvement for a legitimate reason that but but let's just forget this case it seems have to turn this two over to us you did turn it over to us we're going to investigate we have to why isn't appropriate for the government to communicate at that point hey listen this is a criminal this is a potential criminal investigation we think you need to save x y and z it seems like that's the way it should normally work your honor i would agree that it may have been better practice here for the government to have looked at the a t m s themselves or asked to save cash or preserve them but that's not the question that spring court has said is that play for due process purposes the question is whether the government felt to preserve the evidence there is no duty to collect evidence there's no authority and no binding authority to suggest that the government has some sort of duty to collect evidence i guess what i'm struggling with is opposing counsel spoke the explanation was the government must have believed that it had evidence that the that the defendants had a right to have a of or they wouldn't have informed you about it so we have this disclosure that should be expected and and mr tenet goes to your office and there's nothing on the table if you owe the responsibility to tell him about when do you think the concommitant responsibility to preserve it for him to see want to know is if you thought you had the responsibility to tell the defendant that this evidence existed then when do you also have windows concommitant responsibility arise pin preserve it well your honor i think the supreme as i just said i think the supreme court has been clear that the duty and rises when the government fails to preserve the evidence and the government just didn't take in this evidence in this case although that may have question what is the trigger can you always say you know these fraud claims they cost us a lot of money to investigate the company do it every time and then we're going to say to the defendant's company did this there is information from their i t m from their computer or whatever else no it's not on the table they have possession of it and then do nothing further to preserve it your honor there may be a claim that if there was evidence that was obviously going to be useful to the defendants that if the government acts in bad faith for example that's what the ninth circuit did and the only case to have said there's some sort of duty to collect evidence that if the government does so in bad faith and that may give rise to a due process violation but here there is just simply no showing a bad faith so even assuming that there may be some sort of duty to collect evidence that could be helpful to defend and i think this as the district were found as evidence was only potentially useful to the defendants and more likely would have been rather than exculpatory but even assuming that was the case in there's some sort of duty to collect that evidence that's only a due process violation when there's bad faith on the government and that's because the supreme court interim better and youngblood are very cautious about imposing on the government and police investigations some sort of duty to rise to a certain level of collecting specific types of evidence or using specific police tools and so youngblood and brady are both sort of backstops on the government top in this case so cast as this investigation they turn this over the government the government gets  computer technician expert to do this forensic evaluation goes through all seventeen of them and issues a report that proves these to me just makes all the other evidence a relevant you don't need thing else after you've got this makes it crystal clear that these two defendants are guilty of the crimes charged and then with no involvement by the government save cash just stories all of them how would that work with the with the government still be able to put on that expert testimony you're saying that had they have a federal government agent their own witness they pay for to go investigate they do a forensic examination report that conclusively proves the defendants are guilty of these crimes then with no involvement by the government save cash destroys all the a t m or call it for other legitimate reasons can the government still use that expert report to prove them guilty assuming that that technician did the technician printout for example the a journals he just sort of reviewed them and wrote down there's nothing left and maybe a closer call in that case your honor although at that point it seems like it would have been exculpatory or potentially useful to the defendant since i'm not sure  why it's not like our case because you use the district court here said it would be made a difference one way or the other but i'm just that so it's a hypothetical this one turns out to be very cold the tory that's granted but the problem is of course the defendants are saying yet some corporate story because it was a government agen useful to the defendants as presuming it probably we could to say best would have been potentially useful to the defendants the government the defendants would have to show that the government acted in bad faith then i don't think that there would be a due process violation in are the government never had possession of a t m s or the a t m journals and again although that may have been better practice this court the supreme court and youngblood have been very clear that even if that amounts to some sort of negligent practices on the part of the government that's not enough to give rise to this bad thing the one journal and all the other tidbits is that you call them the tidbit that's correct your honor and so that was made available but but the ability to investigate beyond the tidbits that were given was denied that that's right there were the they were the defendants were not able to access the a t m journals for some of the other counts in the indictment and amount which is what the defendant i guess we're back to the same potential question how much the government source and not fall into an agency category again i think that the level is when the government is in possession of the evidence and and doesn't preserve it that's when you have a better or youngblood potentially of a violation and here just to be clear on the facts there was no outsourcing of the investigation the safe caches internal audit was completely concluded by the time the government came involved in this case and with regard to local authorities i think there was a at page five seventy five in the record really what happened was that a pretty indictment delay and the district court found that's not race on appeal but the district court found a couple of things happened first there was a change of agents there was initially one agent on the case and then a second agent came on there was also a change of the usa prosecuting the case additionally two thousand and twelve was a presidential election year and the agent involved in the case was on security detail for the majority of that time and the last thing that the district court said was  that the defendants made clear from the onset of this case that they weren't willing to enter into plea negotiations and so the government needed to seek out additional evidence to prove the case for example investigating the these car person purchases as well as fraud from that point of course wasn't discovered until mid two thousand and ten if you aren't have no further questions and i think that the agency question is clear in this case save cash was not an agent of the government certainly there's no connection between save cash the government and the i sort of two responses to that this court can affirm for any reason i believe the government can defend the judgment for any reason additionally the at the motions hearing the argument primarily surrounded how this evidence may have been potentially useful at trial although i think the defendants did raise the issue of loss amount it certainly wasn't the focus of the motions hearing and then at sentencing i don't believe trombetta and youngblood were raised again although the again the defendants did object to loss amount calculation and they did not reassert that perhaps we should calculate loss in a manner that would omit sort of any missing information and that's why the government discussed this ruby problem below that when the government retreats received the tidbits the partial information that was clearly part of a larger sum of information and they correctly recognized as judge grants you pointed out that this was material in the entirety of it was material i think at that point the brady or the trombetta or the youngblood obligation applied and i think it is your suggestion judge said and i think they did have a responsibility at that time because i agree physically they shouldn't be taking eighteen a t m s into their possession that something of value to safe cash that's fair they shouldn't be taking private citizens property as evidence if they don't have to but they should at that point that they've recognized this be requesting that safe cash preserve this if this was civil litigation and safe cash was suing the defendants and then safe cash it destroyed this obviously that would bode ill for safe cash a lot of civil lawyers hold it for you it's how ill but i don't think that would have been a good thing actually pretty natural thing i'm coming at this from the outside so i i would have that natural reaction to youngblood please remember what happened to me then that is not the case or quite that way it is youngblood was exonerated the d n a ultimately exonerated him when better testing came about so everybody looked at young blood in they said this isn't going to be helpful this is at most potentially exculpatory as it turned out with better d n a testing the man  set free so it's hard i mean i agree i get your reaction that this was probably hurtful but we never know what's inside that box once it's just  i don't know if that is the full ater that you want to judge certain but i just wanted to point out just to add to what mr tenet said that this evidence was identified this evidence as soon as the government got this case the that full record the document they've already identified as the best evidence the missing pages might be useful to the defense and because they said that as i said safe cash had already gathered all the evidence that page eight a one with special agent says that they had a duty to preserve the rest of the evidence the rest of the document for us to see their their urine young blood and young what is your best evidence of your best argument for the best evidence of bad faith that this investigation was so lacking that it amounts to a suppression of evidence they did nothing they sat and let before if you look at the event that they came out at the trial or the senate say here but i think at the trial day they only first of all when they first started working with the secret service that was years before two years before the insurance had paid off they bought a six hundred thousand dollar insurance claim on sixty thousand dollars loss even after the insurance company paid off they still only got four hundred thousand from the insurance company and you have to ask why because that's less than their policy limit so they they were very self interested in this about him all right well i mean if you had something eureka moment for us i'll take it but if it's not a eureka moment i think we'll go to the next case i don't know if that is grateful for that the case will be submitted in the court and i call the last case