we'll hear oral argument now in the case of united states against br if i can judge i like to first talk about the context of this appeal specifically with respect to this fish the of the evidence argument as outlined in the brief mr brown was arrested in october and thirteen three weeks before that he had been shot five times on keystone ave in his front yard by what was suspected to be or at least with your approval of nate hoskins who was taking over the area of keystone avenue in the drug dealing they're no dispute whatsoever in that regard there was no doubt and there's been no dispute with respect to mr brown being a drug dealer on keystone avenue at eleven twenty nine keystone which is the place where he lived the place that he had been arrested from before the place that had been searched and that he was part of a street gang called the mafia swartz that his own who had brought him in as a child and he specifically worked with the mafia insane vice lords who sell drugs of cocaine in front of his house on the east side of the street the indictment in this case clearly acknowledged that the keystone drug market as it was categorized in the indictment and the rico count was a conspiracy racketeering enterprise run and controlled by what they call the double lie the imperial insane bicycle or a separate and distinct ever serial replica representation with the insane vice lords in fact mr brown was not charged as part of the rico of the double lies in count one however in count nine which was the conspiracy he was alleged to be part of it presented was to simply define what was the keystone drug market when was it established who ran it and where were the drugs sold as part of that conspiracy for the keystone drug market mr brown indicated that yes i sold drugs on keystone avenue in front of my house as a mafia insane vice lord and i got my drugs from people that had nothing to do with the double  the mafia insane to put pressure on the imperial insane by swartz to stop it counsel i am puzzled by this line of argument it sounds like you're making a closing argument to a jury but that's not our function when you want to consider our standard of a power review argument of this sort well just that this is the issue as i point out in my brief the real question with this the whole crux of this is what was the meaning of the jury's verdict my position on the appeal is with respect to your case in twenty fifteen luger case when it talks about here we are where the evidence basically indicates that there's two interpretations of the exact same evidence if that's the case then the beyond the reasonable doubt standard could not have possibly been met and therefore the conspiracy conviction in my opinion should have been reverse what i'm outlining here judge is what was presented to the jury with respect to the evidence the evidence was at trial was that somehow that the body insane by swartz and the imperial same bison which were sort of the same thing there was evidence about a box which i outlined in my brief but yet when it came time for the jury verdict the difference was if it was part of one major operation the mr brown was charged with being a conspiracy to sell heroin cocaine and marijuana and the jury verdict specifically denied or refused to part him guilty of any sales as part of the conspiracy for heroin which was part of the double live joseph cocaine as part of the mafia in st beisel so the questions with this quote with respect to the test is whether or not the standard for conspiracy was met given the fact that the jury decided that he was not part of the c now it sounds like you're trying to make an argument about inconsistent jury verdicts and as you know the supreme court says in criminal cases there's no such contention you can't assume  verdict was right and then use that to argue that the other verdict with wrong is just on a non argument in a criminal prosecution that's the holding of oh well well well that would be true if in fact the evidence that was presented with respect on the only argument you can make is about the evidence on the jury on the count of conviction but you can't make an argument that some other jury verdict should be taken as the truth and extend some other count spring court says no what that's not the context of my argument your honor and i understand that what i was looking at in terms of of trying to establish the standard would have to look and essentially appeal puts down the three part test as you know  that essentially two individuals don't conspire together if they have two separate objectives to separate is the fact that they're doing something that's similar if they're not working together for the same odd right and so in this you i gather you are not contending that the jury instructions on that issue were deficient during was told that well that's the second issue judge because my theory of defense was that by the time the jury was was asked to decide the issue of conspiracy the question was what was the relationship between mr brown the miss the hoskins the argument that the defendant had made and was made it has been this poster a statement was that i was being forced to pay  court should reverse mr hawthorne's conviction because the district judge's decision the nine hour post trial grady motion i riddled with errors and in my time this morning subject of course to the wishes of the court i intend to focus on three types of errors that the judge made in denying our brady motion the first i submit is that the judge asked the wrong question it is true that as the government notes in passing the judge did refer to the reasonable but if you look at how the judge then reviews and analyzes the evidence it's quite clear i submit that she did not in fact lie that standard because her analysis is indistinguishable she reviews police officers testimony about an unwritten statement that hawthorne allegedly made and after reviewing all of this evidence in the light most favorable to the government she basically says this supported the verdict therefore you're neither entitled to brady relief and the problem with a i do is that the supreme court's decisions as well as decisions by this court make it clear that the appropriate test is not an outcome determinative test the question is not whether even if the government had satisfied its constitutional obligation disclosure the verdict might have been the same we don't contest that the question is whether there is any reasonable probability that the perfect could have been different and she'd never addresses that question related to late and this is the second floor and the judge's decision she realized repeatedly on baseless assumptions and non sequiturs with respect to the testimony of daryl katz for example her analysis which is a little over a page i assume means that all twelve of the jurors found him to be a trustworthy and reliable witness what basis is there in the record for that assumption not she does the same thing with the testimony of the one chicago police officer who testified about suppose that custodial admissions that hawthorne had made who did not not only didn't record the the interview but didn't even of tain a written statement signed by mr hart there and so all the jurors had was this officer or say so as to what happened and there are two she assumes that all twelve jurors found him to be credible and reliable again there's no basis for that there also no basis for the assumption that underlies your entire discussion that all twelve of these jurors would necessarily have used the evidence the same way and followed the same path to a verdict of killed there is no basis in the record nor i believe i submit in common sense to think that such a simplistic and read dr of approach to jury deliberations would apply here particularly given the fact that the jurors are split on the conspiracy count as to mr hawthorne finding and not liable and the acquittal on one drug type and the conviction and yes the other well the jury if the jurors did credit to some extent his statement to the police officer about having sold a faulkner back in two thousand which is what was discussed in the so called confession that only highlights the importance to this case of the testimony of charles holland who was the individual as to whom the impeachment evidence or was not disclosed because charles fawn was the only witness who testified on the basis of personal knowledge about the early days of the charge conspiracy which began in one thousand ninety six he was the only witness who testified from personal knowledge about joe fockers heroin operation and so your honor i submit that it would be  been entirely proper for a cure to say ok well i'm not sure about this confession because there's no recording of it but if you couple that with charles fawns testimony which supports the proposition that that faulkner indeed was running a lucrative drug operation of that way then that provides some corroboration for it and that is part of the job problem with the judge's analysis is that she finds that the jurors could have found hawthorne guilty without relying on vines testimony but that's not the question the question is whether there is a reasonable probability and the other way in which faulkner was indispensable is that the government charge the seventeen year conspiracy it is of course essential as the first step of proving a conspiracy me what he did but what he did say is that joe faulconer was operating this drug market at that time which provided the only basis for supporting hawthorne's testimony the other thing that's important about von and this is noted in my reply brief it page six is that von was used by the government in closing argument as the sole basis for tying hawthorne's two thousand eight sale of a small quantity of drugs to an undercover cop to the charge conspiracy as opposed to it being simply an isolated act of drug dealing and von was explicitly referred to by the government in closing argument as a basis for for time that to the conspiracy so the problem with the judge approach to this issue as well as the government's approach is that it misleads by omission because a witness does not have to say he did this he did actually get that in order to be potentially important in the prosecution of an individual if he provides evidence that according to government links the individual to the conspiracy by providing evidence about her and the charge of conspiracy he can be trial that sean brown participated substantially in that conspiracy the evidence was that mr brown at the beginning was part of the the original leader of that conspiracy and the mr brown sold here when essentially acting as a manager for the leader of that conspiracy he sold that leaders here when the testimony was that mr brown was paid either on a salary or commission for that that he was tasked specifically with making sure the workers didn't get caught and drugs to make sure the police didn't come around the evidence a trial further about mr brown was that at a point in time when the leadership of that conspiracy changed mr brown's role change instead of selling heroin that was provided by the leader he began to sell crack cocaine but he was obtaining from another source and mr brown was paying for that he was paying both in drugs and in money for the right to sell at the keystone drug market and what the defense has argued is that that's simply not enough to support the jury's verdict but when looking at the evidence in the life most favorites of government there's of course that and there's far more we also know from the evidence that sean brown was selling drugs with packed workers that he was sharing those packed workers with other conspirators we know that there were on on occasion would provide drugs to them it cost and vice versa so all those things your honor we would submit support the jury's verdict that the sean brown was a member of that charged conspiracy i assume there was background evidence to the operation  permission you were worried imperial insane by us lord or had the permission of the imperial same bus lords and because the sean brown was not a member in the later period of that conspiracy that's exactly what he was doing he was paying for the ability to sell drugs at that drug market there has to be a reasonable probability that had the information been disclosed the result of the proceeding would have been different the court then goes on immediately to state the ultimate formulation of that that asking does a newly disclosed evidence undermine confidence and in the trial and then the port nearly went through the analysis that if you look at what charles von said and we assume for the sake of argument the charles von was completely and thoroughly discredited or would have been by this additional evidence is there a reasonable probability that it would have made a difference in the trial and your acid in the defense and i'm sorry to be a palance argument but what exactly did charles von say and as the district court said he didn't say very much during the course of an almost two week trial he crack cocaine which is interesting when we look at the defense's point well should we look at the jury verdict and about crack cocaine the most implicating thing the charles on says is about crack cocaine but as house a pointed out a moment  are there was no conclusion by the jury asked to crack cocaine so i think it's clear from the record that what the trial court did was go through and determined that in looking at what charles  other things that were set at trial there is simply the conclusion that there is not a reasonable profit the probability that the result would have been different had the information about charles on been disclosed earlier is correct for that reason we would