well it's sort of ironic because i organization as we would prefer that the argument be open my client and his family would like to listen to it however this is an extremely fact intensive cape's about corrupt ex officer and it involves evidence that i need to be able to discuss so if the government and the court is ok with me discussing the evidence openly i certainly have no objection to leaving this and would prefer to leave this argument open but i do want to be free to public record there were several references to sealed materials during oral argument before judge hollander below so to that extent i don't know exactly what miss levy is going to say but i expect that what we more police detective daniel hirst personal corruption ran deep and his modus operandi was exactly what mr paler has been alleging since long before his guilty plea that the gun was a plant and that mr pale was framed so that the officers could steal thousands of dollars from the government's position throughout her school's prosecution was that personal misconduct began long before two thousand and fourteen and that's how he amassed one thousand seven hundred discredited convictions the government's position before the grand jury was that mr taylor was framed by her soul notwithstanding his guilty plea and the government's position before the district court in the rule thirty five motion was that mr pillars grand jury testimony provided the government with material assistan truthfully the government's new position here after the government vouched for mr taylor repeatedly and used him to secure the superseding indictment against her soul must be rejected birtles rampant misconduct clearly predated mr p offense the jimmy griffin which occurred in november of two thousand and four and then the government argued throughout the prosecution numerous times that hurtles misconduct had been years in the making that it had specifically would be hard to imagine you could have massed seven hundred dollars bad convictions in a two year time span would you be hard pressed to do it i believe and that's why you know i'm happy to share with the court some of the things that the prosecutor had to say about it the prosecutor and thirty two it talks about him robbing people before he joined the g t and there are numerous sites there including throughout my brief the government's position all along has been that this was this was rampant and long before but obviously if there's any there was such a deficiency below is because the court was only giving sustained convictions or sustained complaints but we'd be asking for all of them with an opportunity did that you know set up the parade of people who were victimized by this testimony although the government likes to refer to it as testimony this is just hearsay of an interview of what mr harris supposedly said but mr harris was in a different part of the house he was out on view of the stairs going up he was with a small trial there were four officers there was a lot going on there was an arrest that happened and detective her soul in his proffer in his own criminal proceedings it made it an office and went upstairs for the fact that mr harris didn't see an officer going upstairs according to the hearsay report of this one government report is not all this positive person's own admissions take you to at least an officer went up and he originally and his and  mother would point to the fact that an officer went up stairs because she had some point said because were mine everywhere absolutely and let us not forget these contemporaneous phone calls i urge the court to listen to that he phone call after phone call after phone call was saying this family these are very tough they went up stairs they took my money this was a frame up he had nothing to gain by making these claims it's ringback preposterous to think that he sentence because he was so terrified of these officers so these phone calls have him real they're very compelling and he talks and i'll understand that here you're air today arguing about the bad conduct i'm reading that wrong yes and i apologize if the brief wasn't clear on that point before mr paler pled he had a strong hunch based on all the media reports and what the fence this uncommon case where there's something so who really just that happened that we should allow the vacation a guilty plea if it was material to the decision to plead guilty and you had defense counsel talking about  into the government he knew he constantly had coordinated plans with the other officers the see what he did he framed suspects he planted evidence and he stole their money and if mr paler coulda had that information he never would have pled guilty and that is what the case of fisher is designed to address that uncommon situation where you have something that really goes to the heart of the prosecution as this one did this would have been for a for be evidence of modus operandi or think for a nd that the government's going to try every prosecutor of course now given how dirty this cop was and how this fell into exactly what he was doing and that's how you know this if this is evidence that goes to the absolute heart of the  martino's for the united states kyon taylor is guilty his guilty plea was knowing involuntary and serious as it was the criminal misconduct by daniel horsnell who wouldn't have been a witness a pillar trial doesn't change emphasize two facts right off the bat that dispose of pillars claim under fisher st the timing the record shows that with one exception every known instance of criminal misconduct by her so happened after he was she reviewed are in camera submission i had a letter from defense counsel in which he laid out his theory of the case pillars allegations about what happened with respect to the us there was also a discovery conference a telephone conference or the district court was conservative in what the court can over at that time out of concern for complaints not necessarily being sustained now that those thirty complaints may not have been sustained at that time and for that reason that the district court was conservative but now one thousand seven hundred bad complaints later perhaps those complaints are sustained so i went i would like to understand from the government the question the district court asked at that hearing was how can the pellet show conduct predating his case if you don't turn over every anything as to what you have that might have predated his case we well your honor we can't go back and redo discovery now that there's a final guilty plea on the books we did exactly what they were asked us to do and i guess we can now only thing i thought she was being considered the district court was being conservative as the court itself expressed and understandably so at that point where the different time now i understand we know better now an indictment against her soul where the jury returned a guilty verdict that was a pending complaint at the time so that shows the judge hollander didn't limit the disclosures simply to sustain complaints that shows that you took counsel's theory of the case into account and was sensitive to what the issues were going to be in the trial regardless your honor i would i would still submit that above and beyond the timing issue we have the nexus to pillers case and that's also required under for sure and the record shows that every known instance of criminal misconduct by hearst will happen in other cases and that mr hayward you point to any evidence other than his own allegations that there was any misconduct in well let me ask you this in the government's view was mr testimony at his place hearing the truth or was his testimony at the grand jury that the government put on the truth very much the former your honor and the government put on testimony in the grand jury that was not truthful your honor mr paler testified in the grand jury and mediately after meeting with the g two ts investigators for the st time he was in baltimore on a ripped from his  that was not my gun which is the truth on the in the government's perspective his sworn admission of guilt as the truth his grand jury just all right all right so then the government did suborn perjury in the grand jury your honor it's certainly true that we as prosecutors have an obligation not to knowingly suborn perjury testimony it is also true that the grand jury is an investigative tool and that we often put witnesses in the grand jury while we are still in the grand jury is still betting the rely well i don't think you put witnesses in the grand jury knowing that there he pled guilty and the the government knew that so it the government had head to think that what he was saying in the grand jury was true and what he said at the police hearing was not to i am not going to speak to the mental state of the prosecutor who put pillar in the grand jury i will what about the prosecutor or the government actors that then made a motion on his behalf indicating that it was true and helpful his testimony in the grand jury your honor that rule thirty five motion was made shortly after pillers grand jury testimony before we had an opportunity to fully investigate what he was claiming and we had an obligation to do that we have an obligation to get to the truth and we did as i did as you mentioned in  s argument we interviewed piller stepfather still you didn't you didn't the government didn't feel an obligation to get to the truth before it put somebody in the grand jury under oath to say something completely opposed to what he pled guilty to you know they were the investigators who prepared in the grand jury were doing that in the context of an ongoing investigation they were using the way here you say in an investigative put him in the grand jury here it was there not a prosecutor in the grand jury asking  called to testify in either proceeding and i was just explaining to the court that following his grand jury testimony we interviewed mr harris mr peeler's counsel brought stuart harris to that interview they were in the room for the interview and during that interview he of vista raided the testimony mr paler gave before the grand jury he said d that the officers were in and out of the house he said that he didn't see or hear anyone going up stairs and that he would have heard it from where he was standing in the kitchen he said that nothing was out of place including in p s bedroom when the officers left the house he said that the police executed the house of the search warrant two thousand and ten to recover two firearms that as well he claimed he remembered the peeler admitted possessing those firearms that's important mr  home immediately after and sell the clothes strewn about the bedroom floor and the money missing i'd don't believe that's true your honor i think that mr you don't know maybe if we had evidence you're hearing it we would know what there's no evidence of that the stepfather was right there were no other other than a small child the only individuals present for the arrest were the stepfather the small child and mr paler the mother was simply not government not to share at least my concern that the government has talked out of both sides of its mouth on this case a case that involves already a dirty cop this just doesn't seem in the end says the justice your honor i will come back to what i said a moment ago and that is that at the time of mr payloads grand jury testimony and at the time of the rule thirty five we had not for hadn't had the opportunity to fully investigate what he was claiming and we did that i just went through the interview of mr harris the a t f interview detective romeo who remembered seeing with paler with the gun and didn't remember anyone going upstairs he had been spoken with the time of the grand jury testimony august of paler and yes the f b i interview detective personal who admitted to misconduct in other cases but not in this one what we know now if we had to do it over again we wouldn't make the rules thirty five dollars and that's because every piece of intrinsic evidence that's come to light alone healers grand jury testimony supports his convictions both in two thousand and fifteen and in two thousand the evidence shows that he's guilty on the d testimony before the grand jury was false and so i don't think it's unfair or that it's gamesmanship for the government to be defending his conviction this appeal to the contrary what mr pillers asking this court to do is to assume that the concrete hardened froze immediately following his grand jury testimony of the rule thirty five and that any further investigation that undermines his claim can't be considered by this court but of course it can there's no dispute mr pillers mortars were present when his own stepfather destroyed the credibility of the testimony he gave before the grand jury so in that sense knowing what we know how do you know if stepfathers credible because he had no reason to lie if anything you  while he is you know there's no reason to believe that he wasn't telling the truth i have no evidence in teaching his profile that government hasn't been the best judge of who's telling the truth in this case so far i think the government i think what the record in this case shows is that the government big great efforts to get to the truth and following mr pillars grand jury testimony we continued to kick rocks over to find out what happened motion what if the rule that he by motion had been granted then what would the government have done if the motion had gone through on a reste we still would have done the investigation that we did to get at the bottom of what he was claiming we still would have reached a determination based on the the testimony he gave the graphic to you how do you made that rule thirty five motion yes because we had we had an obligation the motion in the motion that he was helpful and truthful before the grand jury wasn't that the facts that there was a civilian witness who won for spent had not talked to yet we said we'd better get to the truth of this we better kick that rock over whatever may be underneath it and had mr harris is interviewed gone the other way and had he corroborated mr paler the allegation then mr pillar might have had a social claim we might have conceded relief but that's not what happened mr harris didn't support mr pillers account he discredited it so that is what i'm referring to your honor when i say that every piece of new intrinsic evidence that has come to light following mr pillers grand jury testimony supports his conviction and i just i want to circle back to a point i'd like the court to keep in mind  i want to talk about what this case is not about we don't deny or minimize that daniel hirst of committed serious crimes but the case against mr pillar didn't depend on her sole pillers guilty plea wasn't as counsel has suggested simply an acceptance of souls version of events by the time killer entered his plea we told defense counsel that we wouldn't be calling her soul as a witness and it was after that mr peeler stipulated that had there been a trial in this case the government would have proven beyond a doubt that he possessed a gun and we'd have proven his guilt by calling three other officers none of whom despite mr peeler's attempts to muddy the waters on this have been implicated in any wrongdoing our case might also include have included extrinsic evidence that mr possess taylor possessed two guns at his house in two thousand tonne we filed a motion to admit that evidence and rule for or be it was pending at the time of the plea so mr peeler knew and admitted in two thousand and fifteen that her soul was a sideshow and that the government would have made its case beyond a reasonable doubt without the other thing would like to emphasize to the court is what fisher actually set in order to set aside his plea under fisher mr paler has to show agree just police misconduct that pre dated is guilty plea and under pin the charges against against him and we've talked about the timing issue your honor but i do i also want to talk about the underpinning or intrinsic misconduct requirement and that's no wrongdoing on her she's part of all mr pillers grand jury transcript is certainly not a model of clarity he claims in the transcript of another officer went upstairs and stole money that much is clear  before your honor's question i was talking about fisher's requirement that the misconduct underpin this case and i don't think you can read that requirement out of the fisher opinion whatever word you use whether it's underpinning intrinsic or some other term it is clear that what drove the analysis and fisher was that the misconduct happened the law enforcement misconduct happened in connection with the defendant's case in that case the task force officer and it's much more an affidavit for the defendant's residence which her argument in a slow he tried to manufacture an allegation of extrinsic misconduct by claiming that her sole admit it that another officer went upstairs and stole money judge's radar and hollander both considered that argument below and concluded that it's wrong there's that right now i'm sure there were three hundred and two and that and reports in the one thousand seven hundred other cases that he engaged in misconduct and i just don't understand why the government would rely on him for anything that's the point i'm making to the court all right that's fair and so mr pillar the fact remains that he can't come up with any new intrinsic evidence of misconduct in this thank you briefly or honors the government cannot escape this case is absolutely dependent on her soul and the efforts to to run away from her still here should be disregarded i just want to remind the court to take a look at the so you know based on what her little said the only other officers who have gone on record are burns who did not see a gun rovio who contradicted what hurts all side and we've never heard anything from more so this case whether or not h and the files and records of the case conclusively show that he's not entitle to release an evidentiary hearing was required and the facts have to give you the light most favorable to the twenty to fifty five movement for that adjudication so all of the if there are remaining questions about the i d's or anything else there should have been an evidentiary hearing with that said the government's reliance or misconstruction of the evidence i would  an officer went upstairs it didn't is it meant that an offer stole money but it emitted that an officer went to there's which contradict this police report does not mention in this police report and certainly given all the modus operandi evidence of him working in concert coordinated looked at thirty the court admitted that it worked at those before it had any knowledge about what a corrupt officer they were dealing with and it only consider sustainable court even the district court some to be more thoughtful about how limited the discovery was in this