labov it's my position of the position that effectively the world trade center decision which came out fourteen years subsequent to them really overturned certain elements of leboeuf when it use language that said the compliance with section rico and yes it does well spent the declaration submitted by mr rico which is really the key declaration here only contained all it said was and i think it's an eight ok and this court and using the language must obviously the word is going to apply his court could have said it should or it should basically say these things but it doesn't this court use the word  and then all of a sudden this long decision from here is ari appears for five years the rico and michelle could well have corrected that and i think there's a th circuit case that i referenced where the court talks about correcting  deficient and defective declaration they never chose to do this judge or azhari at a certain point ordered in the course of her decision regarding supplementing the record additional discovery allowed the u s attorney and rico and mashallah to file nd secondary declarations those operations only deal with one issue and the and that is just petition for a relief his petition raised ten separate issues those that that  corporation by those secondary declarations by the two defense attorneys only discuss the issue about plea negotiations so st of all those declarations should have been stricken by the court and judge irizarry did not do that ok secondly where bad law are now because the world yes that's correct judge and the world translocate is really pretty specific if you look at the three cases but the trade center case relied upon those three cases where it was so very specific about what language should be used and the and complying with section seven hundred and forty six i mean congress only enacted seven hundred and forty six was careful they wanted to write a provision that someone can submit a factor sworn statement other than that being provided in front of a notary that it was an affidavit so compliance with seven hundred and forty six you need to comply specifically what the requirements of the statute law secondly i think it's also important to address that the and this is not a minor point that the signature of rico included on his declaration was clearly not in compliance with the rules of the court the court is very specific the district court eastern district is very specific about what constitutes a individual was denied effective assistance of counsel what that signature was if you look at it it looks as if it was kind of screwed the law on the screen i'm not sure how it was done and then the declaration wasn't even submitted e c f it was sent in to judge  clear that it's an original signature or it's filed by the declarant himself this declaration by rico was not filed by himself it was filed by judge years are his clerk it was in violation of the court's rules and let's all individual because you know the rules either apply to everybody or they're all part of anybody and it seems to me that two things here st of all the failure to comply with the language of seven hundred and forty six as interpreted by this court in world trade center and secondly at is when there was a request for discovery and a request for an evidentiary hearing judge or azhari rejected the idea for an evidentiary hearing and then decided she was going to create some kind of amorphous type of hearing where she said ok i want the u attorney and michelle and rico to submits a supplemental declarations ok in support of their position well those supplemental declarations deal elise recalls operation deals with the issue of  client and five of his family members who were claim under solved that they were present during these negotiations so that their conflicts have serious factual disputes with what mr recall said and to not allow my client to have a full evidentiary hearing under those circumstances i think was serious error he raised material issues and went directly to the advice that he relied upon when he made a decision to go to trial which exposed him as the record shows to a possible life sentence as opposed to work sentence where he pled guilty which would have been substantially less and expose it so much that clearly there are issues that i think an evidentiary hearing where the presiding judge has the opportunity to not only review the record but listen to the testimony of lee individuals who file the declarations and make his or her decision as to how credible they are because at the end of the day gentlemen we're dealing with this is not  generation who went to catholic grammar schools that's quite possible that under the structure of a nun he learned to write really neat lee and i never had that opportunity so my signature looks like whatever your concern is it is to need his  simply to need for to be valen correct and also the way it was submitted is the other issue the way this document was submitted that judge irizarry they will say it has to be submitted by the individual it can be because they're devastating to his claim he acknowledges here on appeal that their validity is the key issue because on the facts he really has no serious argument the core of his argument at least as he's raised it here on appeal is that this court subsequent yo overruled another opinion of the court without acknowledging the previous opinion without citing it and in deciding a completely different issue as far as i'm aware that is not how this court operates and there is no reason to believe that any part of the world trade center panel any member of that panel understood that it was overruling a prior opinion of the court this court could of course decide that leboeuf is no longer a good law but even if the court were to do that there would be no reason to question the validity of the declarations issued in this case at the time which were issued at a time when the book was good law so ultimately i think we're talking about a technical question about these declarations and in the government's view even if there were a problem here with some technical part of this i note separately that mr battista himself didn't satisfy his own standard in filing his is his own declaration doesn't meet the standard that he suggests the government declaring were required to meet so even if there were a problem i think the solution would be to simply fix it and then address the facts he concedes that he has no argument on the i just briefly note in world trade center my adversary notes in world trade center the court cited several decisions including a th circuit decision that th circuit decision was also cited by the look off court and distinguished so the only other circuit conclusion after going through the correct language and so on we said that forty eight dollars luzhin of the language under penalty of perjury is an integral requirement of the statute and we didn't see that about the correct language we didn't see that about anything else correct and as i read world trade center it's completely in harmony with with the buff and this all stands to reason because the concept of perjury has a the integral part of perjury is that the thing being offered is untrue for the purposes for which is being offered so for example this court decided black's law dictionary defining perjury is deliberately making materially false statements while under oath the key piece of that is under perjury not the archaic formulation of true and correct because why not true why not correct why not some other word that's that is a suggestion by congress which congress suggested courts should require substantial compliance with and so the cases that my adversary relies on merely recite the fact that the statute suggests substantial compliance with those elements they stand for nothing beyond that just to very briefly deal with the other issues on the evidentiary hearing the court held that the court decided to request additional information on an extremely narrow issue an issue created by mr battista his own faulty memory of when the plea agreement and the plea negotiations occurred having done that in an abundance of caution everyone at the time the court ordered the additional discovery everyone agreed nobody suggested there were two agreements the judge asked for additional affidavits to confirm that and what they confirmed across the board and i don't i don't believe he disputes at  this point is that there was one offer the problem was that mr batiste believed it happened after jury selection a memory that is frankly a bit implausible but putting that aside everyone else understood recalled that this happened on august t having resolved the issue of how many offers there were because of course if there had been more than one we would be discussing a different issue having resolved that question there was no need for any further discussion discovery and no need for a hearing so the court was in any kind of family so i think what the judge did with respect to that is as follows taking the rico declaration the michele the declaration the freedmen declaration and her own experience overseeing the trial mr butt used as perjury is testimony a trial and so on and beyond that the frankly implausible statements or many impossible statements that mr battista makes in his own submissions for example that the government told his lawyers that we knew he wasn't involved in the drug crime things of that sort she simply discounted his his affidavit and said he is not credible she then said his family's affidavits are based on his his recitation of the facts having having rejected his recollection of those facts as implausible it would have been bizarre for her then to say but never the last his wife or his family member many of whom were not present for these things they were nevertheless credible under these circumstances the interest obviously the judge was also entitle to consider the interests of the parties who are involved here and recognize that this is not the fault of family members here which is same in the context for example of determining whether a be that when there is understanding that there is weakness on one side and there is in possibility on one side and she has the benefit as you say certainly with respect to mr battista assessing his i mean i think the answer the simple answer that in the st instance is because the court's cases don't require in the court has said repeatedly that a district court is entitled to take this middle way even when the allegations involve quote unquote off the record conversations or laugh or issue like this one that a court is entitled in the st instance to take sworn testimony from the participants and and determine whether further discovery is necessary i've been involved in these as in a usa where where we've done that sure i totally agree with that because well that's not a significant cause if you include the circuit having to review i'm still not totally sure that's true your honor because if if the if the mere allegation automatically triggered the requirement to have a hearing many of these are resolved cross a so we don't have c j counsel and some of the mr kleiman was retained late here if we had a hearing and everyone of course there would be counsel and everyone it's not always the case that the lawyers are local it's not it's usually not the case at this point of a proceeding that the defendant is local so we've got the marshal bringing this guy in from some other place there are significant costs associated with this that we follow up on that was there actually a request for  there was a request for discovery i'm i would be shocked if somewhere in the record your honor there isn't a request for that just and if that request was made who who would who would have made that request as i stand here right now i can't former distributor and i always found that in these moments that had to have a hearing ever so short the district judge is always in control of of the courtroom and the timing seems to me  we would not be at that hearing might have taken less time than we have taken here in discussing whether they should have been here so from your point of view forget judge the district judges obligations i'm not suggesting that you your statement of lawyers in correct in any way but it seems to me from as a practical prosecutorial policy it is in your interest to sit down have such a hearing and have it quickly and give the give the other side an opportunity to be heard in fact it would strengthen your case greatly as you know because if you had such a hearing to your ear now you could make a conclusive findings of fact which we would never  even think of of of modifying precisely because they were findings of fact on the record which might include credibility findings isn't that the the most efficient way if you operate as an office it's possible in cases that may be true and here like you said i wasn't involved in the earliest days of the us is that never happened i would have made a diff different decision perhaps i wasn't suggesting any personal criticism i'm just suggesting that perhaps as these things happen when you go back across the river you might drop out and i met a memorandum to the to the chief of the criminal division and ordered to the to the us attorney suggesting that you had there was this this and i and i appreciate that the advice and i the only thing i would say to that is you're absolutely right that there are cases where that well may be the more efficient path here i would just respectfully suggest to you that number one jurors already as all district judges are  is busy she oversaw the trial whether she would have been amenable to that is a separate issue that is of course beyond the government's control now if the government conceded that a hearing was warranted the likelihood of her having one realistically is probably good but on the other hand the law is what it is and in her a couple of observations st of all as to the presidential value of world trade center as opposed to above the world trade center case and i'll ask you gentleman or whoever reviews this to look at the cases that were cited by world trade center on this specific issue those three cases those two district court cases and a court of appeals case all made it clear that beyond saying under some subject to penalties of perjury there is additional language that's required and i don't think my adversary claims that well those additional requirements are archaic well whether there are camps or not that's what the statute says and you heard you heard my question when  e the world trade center decision in the scribing what's the interval element we only destroy the language referring to under penalty of perjury after having gone through the correct language and so and two but can do three it was no differentiation so my position respectfully judge is that world trade center provides a certainly an excellent guide here and i think in the context of the issues raised here and the fact that the re or it's this is not a case i've had a lot of maybes cases and looked at a lot of them and a lot of the time that's the the petitioner has a lot of these arguments but there's nothing in the record that supports his claims here mr batiste maybe effort of and make a record as to whether st of all who is credible here who is not credible bring in the lawyers this is happened before and make a record so that if this case ends up back in front of you gentlemen this more complete record but judge irizarry chose not to do that i would you know and also i just want to say the fact that she may be busy is as my adversary said is really i have to say is really disappointing i mean that's a u s attorney position that judges are too busy so they can't deal with someone's petitioning for their freedom but i don't think any judge would ever be so busy that the issue of a criminal case where someone's freedom is at issue should say well i'll deal with the other cases because i'm too busy to deal with this that's not an excuse whatsoever i would with all due respect to the lower court and to this this court as i said this case has been going on for six years now the petition was recently filed for the th of fourteen sooner than later and i would also with all due respect to judge your azhari because a lot of record below i believe i think it's under two thousand one hundred and six of the stat title twenty eight i think it is you gentlemen can assign it to another judge without making any judgment whether is are was biased or prejudice against my client i just think that the record be a lot cleaner and it would be clear if another judge across the river had the opportunity to review this it's great thank