please the court my name is daniel resumed and together with john gleason we represent claimants a lobby foundation and six fifty fifth avenue company this is an appeal of a civil forfeiture case in which hundreds of millions of dollars of claimants properties were forfeited based on alleged services for iran a lobby is a forty year old new york charity that is given money exclusively to u s and canadian entities the fifth avenue company as a real estate partnership formed in new york in one nine hundred eighty nine to hold an office tower on fifth avenue despite a previous trip to this court the district court made many of the same errors as found in the last appeal and claimants were once again deprived of the right to a fair trial from the moment the case was remanded to the district court in july of two thousand and sixteen the district court made rulings based on its deep seated views of the case and of the claimants rather than on the law the evidence or even this court's mandate there are four separate issues that we'd like to address today i will be addressing two issues and mr gleason will be addressing two issues based on the complexity of the issues we appreciate the present the we will keep this is as contained as possible i will be first addressing the statute of limitations and focusing on the fact that the government particularly the f b i i r s and ofac were aware of and investigating the very same alleged offenses giving rise to forfeiture more than five years before these forfeiture claims were brought t that sure there can be no legitimate dispute that claimants when we sought discovery sought discovery about past investigations and through a series of e mails and communications referenced in our brief we dealt with the assistant s attorneys and negotiated what information of past investigations we would receive we focused on state department i r s ofac and f b i they agreed to provide those in for those documents to us and discovery was hindered by the classification process in delays by the government over and over it was delayed we finally moved to compel we actually filed several motions to compel and oppose protective orders in those discussions did you articulate that you wanted these things for statute of limitations purposes or is that not explicitly said in those discussions we did not there was an agreement to provide that information what we explained to the court in moving four and just it to no judge and we never tell the other side why we're looking for evidence we said we need this past investigative things and not explaining why not explaining why nor would we ever say look i want to get this first action limitations or i want to impeach your witness with this we wouldn't say that we did that it was over broad or was that it was inappropriate to do it was conceivably relevant and we moved to compel we explained it was a scope atory included in the in the definition of exculpatory it's statute limitations related by the end we specifically said we need this reschedule imitations before a critical deposition was to be taken just for us denied that it was reversed and in the last appeal this issue i the court found that these materials were entitled to law enforcement privilege and we pointed out that this is a classic sword in stone did so without noticed you as she intended to do so which is what one of the the and we sent it back and we specifically referenced the fact that there'd be a little or no discovery with regard to yes i don't understand i mean so tell me the basis of her wayward conclusion the basis of her waiver conclusion is specifically that we didn't identify to the government that this discovery was sought for statue limitations purpose we didn't entitle it statute of limitations discovery that was a mistake your honor there was no basis for that the instructions from this court were clear it was remanded with instructions for further proceedings consistent with the opinion and nonetheless the government was allowed to take this position we are the sword they said that this previous information about the previous investigations the fact of these alleged offenses was unknown and on no ball before november two thousand and four yet at the same time we sought discovery saying really we want to see this they they took this this position that it had been away if that was not relevant and i will offer your honour's in the appendix there is a particular document a thirteen sixty two to three hundred seventy one and this is a critical document from one nine hundred ninety six and in this document it talks about f b i working with ofac to potentially remove the tax exempt status of the alabi foundation and then on the third page there's a reference to f n y a lobby foundation new york page we specifically were denied it and your honors this is not something where the simple fact of the failure to provide the discovery merits reversal really and for discovery alone we think that this information that squeeze through that we have demonstrating that the government was investigating control of a lobby by the iranian mission iranian ownership of the building and money transfers to iran we have enough right now that we deserve summary judgment summary judgment on special impatiens why because the government has conceded that they pled this case as a continuing conspiracy and where the alleged offense is a continuing conspiracy a continuing scheme the government has to act within five years late didn't this was known before november two thousand and four the government waited too long we are entitled to summary judgment it doesn't need to go back we're entitled to summary judgment on and the government's decision to plead this is a continuing scheme was strategic to the extent they could have pled multiple discrete acts after november two thousand and four they didn't they chose to do it this way because they wanted forfeiture going the government here was forced to use the theory of forfeiture that property was retained as as a result of the criminal acts alleged criminal acts because all of the properties the real properties were required before defendant was accused of fraud in connection with lying about her income to receive rental subsidies and the court found that the money that would have been paid by her was available to her she had the procedure of paint it's what did happen what actually happened in this case when you get to retain property one necessarily has to think about what would have happened but for the unlawful conduct in torres as your honor found and doesn't that begin to enter into the retention kind of your honor i think that's necessarily hypothetical and necessarily speculative who knows whether a lobby would have stopped giving charitable donations in those years or maybe sold a greater portion of interest in this case that wasn't done the jury wasn't informed they weren't asked nor could they have been asked to figure out how much of the building would have been lost instead they said the entire building was retained because the presumed avalanche of lawsuits or a  devaluation of the jury had no basis to evaluate that and i will tell you on this avalanche of lawsuits of the two in particular the jury not only couldn't presume that there would have been lawsuits filed but who knows whether they would have been successful there was no basis for the jury to find that these this presumed avalanche hypothetical lawsuit would have been successful they weren't instructed on the law they had no information about the burden of proof what evidence would have been admissible the government relied on the a those claims would have gone anywhere because a lot is a new york citizen it's a corporate citizen so the court gave instruction insinuating that there would have been lawsuits and they would have been successful but that retained theory fo other than terms there's really not a lot about it it really is kind of the in interpretation of the word obtained and whether one can presume properties of paint and we're not suggesting in the right circumstances like taurus or in a eight bankruptcy fraud case where someone fails to disclose something and gets away with it that theory can work to hang on to something utilizing something that you're not entitled to correct and with the courts indulge i just want to mention one thing in taurus the court wrote in this a quote the defendant saved a quote discrete sum of money saved exactly corresponding to the reduction she was granted and available for her use as a direct result of her fraud i can good morning may please the court as mr resign the mentioned i'm going to address the suppression issue and i'm going to address some of the bundle of issues that arose in connection with the fifth amendment invocations that would prove to try with respect to suppression the denial of our motion to suppress the fruits of the search of the law offices in december of two thousand and eight as to be reversed again the  the good faith finding was wrong this court in sending the case that we said the war was facially inadequate facially inadequate for said it well we said it failed because it failed to particular in a few minutes but but there was no attempt at all to do what we asked the court to do we specifically instructed the judge to do pretty inevitable discovery analysis so we laid out the exact case law that requires  and what is it is it clear to you that it was not done yes and let me turn would have been simple thing to do would it not you could have measured you could have taken a list of every single exhibit that the government wanted to present and we could have we would have to grit we've had a record but where can i find any way of knowing other than a then a bold assertion that because the discovery requests were so broad and that the discovery from the from the judgment creditor was so broad that ultimately all the documents that the government had they would have discovered in any of that there's no way that there's no way to read this record to tell me that can you give me one page in this record where i can do in that kind of analysis to interrupt this question  one and explain about the scope a district judge starts with respect starts with identifying all of the contingencies that would have to be resolved to make the determination that those documents would inevitably have been disclosed but for the illegal search for example and i'll suggest to this court that the basic problem with the district court's approach to this and it was that the government shared it was the assumption that assuming that the amended complaint amended complaint was filed against the a lobby foundation that there would then be civil discovery and therefore the documents would have been produced but in fact that's the beginning of the inquiry after that assuming and us i'll just say this i'm not going to dwell on it on this on this record the finding that there would have been an amended complaint against a law is not supported but assuming there would have been then the question is well would it would there have been predawn nine hundred eighty nine and allegations in that complaint what with the discovery were government civil discovery demands had looked like government didn't prevent attempt to present evidence that it would have sought the be done did we not yes for each particular piece of evidence how the discovery would have provided that evidence that would be more likely than not that it would have been evidently discovered with a high degree of confidence and this got such short shrift by the district court is just a few pages of the opinion it just assumed and let me suggest this by way of contrast both the district court in the government rely on vilar where judge sullivan when he was a district co engaged in exactly this sort of it's it's in the it phrase means something the discovery has to be inevitable it's district court said she could find this with relative ease it's not supposed to be easy you roll up your sleeves identify the contingencies that have to have broken in the government's favor and decide for example in judge some of ins decision well suppose they made the identical requests they're still objections and burdensome this issues and privilege issues that it's not easy some of you have done it it's hard work it's the determination as to whether in the face of a facially deficient warrant that so obviously violated the fourth amendment whether or not those documents would inevitably with a high degree of confidence have been disclosed and she gave the district court leave that the back of her hand wanted to go to the second issue second issue as just a few of the issues ar ising under the fifth with respect to the fifth amendment assertions standing alone the preclusion of the testimony of his son ian to beren is indefensible in and of itself requires a new trial in this case the district judge's job and this is set forth in this court's decision in four thousand and three a four thousand and five fifth avenue the district judge's job is to facilitate testimony in circumstances like this not to preclude it waiver can only be found when there is abusive tactical use of the assertion of the privilege and then the waiver of the privilege and that case is a perfect example similar case but he discovery here had  standard scuse me for a young guy yes it is and the case went back at the very first appearance your honor the case goes back in november of ninety two thousand and sixteen mr resign at the first appearance seven months before the trial says by the way there were some witnesses who three years ago asserted the fifth who this time might testify the government may want to depose him there was not only and i'm going to once again make note of this court's admonition that that district judges are supposed to in a case like this where the government it's a civil forfeiture case the government is the stakeholder the plaintiff in a high stak civil forfeiture case also holds this power to threaten criminal prosecution this it's a very sensitive situation and this court has recognized in the past that in that in circumstances like that just records need to work to facilitate the waiver if they can seven months before trial the just record is informed that the that some of our witnesses might waive and testify and her first reaction the first words out of her mouth was well the government might say that it's too late seven months later after efforts unsuccessful efforts with respect to two of our board members the government eventually said it was too late and the district court agreed but it's exactly the opposite of what the district court has instructed barak but like this court's case law to do the kind of abuse judge chin the the kind of abuse that that supports the ruling that we got here is evidence in that four thousand and three to four thousand and five case where in a civil forfeiture case where the but the principle asserts the fifth or not at trial the government was permitted the plane of the neons and read some questions did the your client's given the opportunity to explain that the witnesses had changed their minds did the jury find that  know we were precluded so much happened in this trial where the government was able to rely on its evidence we were not permitted to answer it if you make an offer prove that you wanted to bring out that these witnesses change their minds and then work to try to mitigate the fact we tried to demonstrate the short answer to your question is other than to tell the court that it they should be permitted to testify and to have them precluded of the the rest of our response was we wanted to elicit evidence with regard to agent conduct with regard to prosecutor conduct that would explain to the jury since the adverse inference is permissible and where we are entitled to put on evidence that supports a contrary inference we want to show the jury why they assert of the fifth and it was not because their testimony would be adverse to their own criminal interests or a lobbyist it was because of the way they were treated by the f b i and that way they were treated by the by the prosecutors that was precluded like so much of the government's case it went unanswered by us because the district court precluded our evidence he well we're looking for this time around we think this court ought to issue an order suppressing the evidence if we get this far we we think this court order entered an order directing judgment for the claim is based on statute of limitations grounds but specifically on this issue we would like an order that reverses on the ground that these two individuals should have been able to testify and because of the government misconduct precludes any use of prior assertions of the fifth on remand we think this is when you look the government seeks to divide and conquer all the it and i know this is well briefed so i'm not going to spend all the time on the facts government seeks to divide and conquer them this is an effort by the government not to use that subpoena power not to get testimony the ones who wanted to testify were said don't bother they don't bother coming in the ones who said they're going to search the fifth came in for like a type production seventy questions asked on video and all of them got the prosecutor knew ahead of time the fifth amendment would be asserted with respect to i suggest to this court it's very difficult to convey to you the prejudicial effect of the way every three days during that trial those video recordings yet the other thing judge parker to answer your question is if there are any assertions of the fifth on remand it should be through stipulation that the government isn't should have accepted our stipulation that with respect to all questions related to the lobby foundation and its relationship to us and bank melli that witness would have asserted the fifth the member privilege period that's all that was necessary the way this was set up we cited to you the the dissent in the in the brinks case you know when a prosecutor knows ahead of time there's going to be a fifth amendment asserted to every question and then has the opportunity to present the video recorder the fifth and then ask cherry picked questions it it is inescapable he creates the inference that the that the witnesses answer to that particular question would have been adverse t that's how they prove their case those witnesses would have testified that they had no idea who who should kiri an aga miry the persons to whom bank melli said that it had sold asa they didn't know who they were they tried for years to find out who they were the juxtaposition of the assertion of the fifth and the ability to read those cherry picked questions allowed the jury to infer that particular answers would have been  questions would been answered in a particular way it wasn't in the end of the day you know we're not we know nobody's entitle to a perfect trial this was not a fair trial our let's hear from the government please the court system united states attorney michael locker and for the government i will be guided in the order of the issues by the panel otherwise i would start at the back and work my way back towards the front whatever so i would like to start with the fifth amendment issues that that council raised and i think i think here it's important that our principal argument is going to be that the record answers all of these arguments that's going to be true with respect to this issue as well as respect to the troubled by the refusal to let them walk back there indications the fifth when there were seven months to go plenty of time to i know there's a lot of pressure easy for me to say plenty of time but there were seven months to conduct some depositions and i thought that that part troubles me i think the what that argument by the claimants does your honor is i think it reverses the burden of the four thousand and three to four thousand or five sets out for how to address these issues and what the what this court said in that case is that on timely motion by the claimant so what's happening here is it on time only if it's seven months what prejudice is there to the government by you know unfair prejudice we're talking about you know obviously you don't want them to testify but what unfair prejudice is there when you've got time to take positions so i would say i wouldn't say that we didn't want them to testify i would say we didn't want to reopen discovery that's what i would say but what four thousand and three to four thousand of them to testify that you were only doing it because that's you know her i don't know that makes any sense well let me go again through through the chronology that i think explains what  prejudice was there to the government by not agree to this taking their deposition so that you would know what they would have to say so here's i think the chronology sort of sheds some light on what the what the time period looks like i don't think the time period looks like seven months before trial this issue was teed up i don't think that's what the record shows and they were the record shows is there was a general observation at a conference that some people who previously had invoked might potentially that was potentially in play and then we were advised by a claimant's counsel about two and a half months before trial about two particular witnesses that they intended to offer and at that point we didn't do nothing we contacted the witnesses counsel to find out is this in fact true first of all and what would their position be on a deposition if we sought to depose them in advance of trial but what never happened was a lobby never went to the court to ask for relief from the discovery deadlines which i think when you look at four thousand and three to four thousand and five the process that's laid out there kind of maps on to this and it again in four thousand three to four thousand and five that wasn't even a trial that was on a motion for summary judgment and this court found that the district court had discretion in light of the course of discovery and its evaluation of potential prejudice lot he didn't actually ask for any relief and didn't propose any accommodations until shortly before trial so i think it's a real burden shifting to put it on the court and the government who's not the proponent of these witnesses to say you guys have to protect our rights you have to invoke our procedures under four thousand and three four thousand five thousand and i think it was perfectly within the course discretion discretion to conclude that with these depositions having been taken in two thousand and thirteen almost four years ago at this point with the discovery having been closed and closed in the parties being directed to you know be in the same posture for trial that they had been prior to the remain and to say that it would be prejudicial and i think it would be prejudicial because depositions are intended not only to find out what they would testify to but also to discover additional information to because of the claimants argument that the invocations were coerced and for that reason we thought that playing short videos so that the jury could assess the demeanor of the witnesses when they were asked the questions vocation case the question isn't whether the privilege was invoked because the witness perceived some jeopardy and had the right to invoke the question is whether they were bullied into invoking notwithstanding the fact that they a couple of things your honor i think first that question is a way to question what i think that is a way to be evidence question rather than the admissibility of the evidence question but i also think that you know a lot of  argument was that these people were so frightened by their interviews you know jackbooted heavy fisted interview techniques by the f b i that two or three or four years later they were still so frightened that they would invoke the fifth i mean days and with the talent of things and instructions on inferences it does seem inconsistent with our case law that says that district court should do what it can to get the could you point me specific references right this minute to the pages where she did exactly what we told her to do in terms of adana by each and every document that was discovered and how they were would have been discovered if i could i would point you to where that happens the whole explain why it does that so i would point you to governments exhibit seventy from the suppression hearing which is the stipulation that identifies and introduces as exhibits into the record of the suppression hearing the documents that a lobby in fact actually produced in response to discovery requests after they were made and then and her down for cation each and every one of those and how those were so of the search materials should not be suppressed we were only are awaiting that the actually produced search materials should not be suppressed so the government's exhibit seventy by definition includes all of the documents that were obtained inevitably as a result of the discovery quest so why i'm supposed to i'm supposed to go into the appendix without reference by her to the record as the documents and seek them out and and do the analysis myself my clerk and i wish to sort through the thirty thousand pages that constitute the record this is that what it is that what the individual practices i don't think you have to know because they're on the desk and just like in valar where the where a subpoena was issued and there was actually litigation about the scope of that subpoena and then actually documents were produced in response those documents whatever is in there those are by def initially the documents that inevitably would have been discovered is quite beside the point because what you did when you went back all before the district judge was controlled and framed by the mandate rules we didn't tell you to go back in this court didn't tell you to go back and do a little more balancing figure out what easier approach to this problem was this problem by the way was of the government's own creation because of the way the breath of the search warrant in the way it was executed but what you were supposed to do once was was framed by the mandate rule and as i read the record the district court judge with your cooperation simply did not obey tells you all the wars the system breaks down counts i agree with everything your honor said except that i think that the district court proceedings did comply with the mandate rule the district court held as the court directed so don't stand there and tell me that she complied with what we told her to do because we were quite specific with what we told her to do and no so let me ask you this could this matter be remanded so that the appropriate an argued with some force that the good faith exception might apply under these circumstances and the remainder was also to address the factual and legal issues surrounding the good faith exception which this court has done before for example in romania particularize in any way shape or form and so we should say that to page two page search warrant that really makes reference to what was a very detailed affidavit by a very knowledgeable and which did supply probable cause in my panel made that finding panel was unanimous in that regard but two members of the panel did make their findings but a two page search warrant covering any and all documents with no time limitation whatsoever which this panel by a member of the us attorney's offices gradually the university of virginia and so therefore and spent a two or three paragraphs telling us about what a great law school she'd gone to and so therefore that she was she was knowledgeable but failed was trying to make your honor is that even in rosa for example which authorize the search for any and all evidence of crime contained on electronics which i wouldn't which i would argue is broader than the categories of documents they're identified in the search warrant mandate was adequate we did we thought we thought that it was you told her below that you thought and what she did complied with the mandate and that's and that  done what it was required to do by this court i can't recall exactly but i am certain substances i'm time certain that we agreed that the record was sufficient for the court to make its findings was there some way to line up i mean  if there were some way in the record to figure it out it would be a lot easier i mean the thing that troubles me is i we haven't we haven't we haven't we haven't emphasized that the court must must and then we following language for each particular piece of evidence specifically analyze and explain if at all discovery of that piece of evidence would have been more likely than not inevitable absent the unlawful search we that's a quote from want our law book you know and so i get this record and you tell me there's this disc in because on the disk is all these documents that somehow they match up to what you seized in the search warrant i should be satisfied with  that and it satisfied judge forced i'm not i'm not that's that's not what i took what we what three of us told judge forced to do remotely now let me ask you this yes your honor was your was your prove to her did you make a representation to her that the dark but what you had on that disk matched up with what you see under the search with the stipulation provided that those disk improvised the lobby foundations discovery production and that production included the documents from the search that we were propelled all of the documents in the search not all of the documents from the search only those documents from the search that we were opposing  oh i'm sorry i misunderstood the court's question we did not propose to use any records from the search that were not produced a discovery we did not offer those we did not propose them as exhibits by one cup just a couple more with the chit senators did your opponents object to the characterization of the documents that ron the the disk and it's and it's in comparison to the documents that you had season intended  and the court quite helpfully actually provided a checklist for the parties to refer to in the concluding section of that opinion what the opinion did not do is identify a particular discovery ruling but it didn't but it didn't evaluate the respective positions of the parties in terms of what had been asked for had there hadn't been that was a litigator or or argued and simply front of the court because the rather so then just very quickly what the what the what the opinion did and how i think the opinion was implemented below is to identify discovery certainly as an issue that a nonmoving party is intitled to raise in opposing summary judgment and one of the reasons why the court couldn't conclude that there was no prejudice from from the sue a sponsor nature of the summary judgment order and under rule fifty six d i think lays out the non movements right to identify potential discovery issues in opposing summary judgment so henri mand we did address the issue of whether there were discovery issues that precluded summary judgment at that point in time and this is where i think we really get into the district court's discretion and controlling the course of discovery because this discovery was i think claimants would agree a complex  so in the course of that discovery which i think the district court catalogued pretty exhaustive only and its in its review in its order denying the reopening discovery and i think there are a couple things that that are that are clear about that i think it is clear that the statute of limitations as a theory of relevance was not raised and till the very end of the discovery period and at that point only with response to the counsel's point you need to tell you why they want the stuff they just need to tell you what they want my response is that they don't have to but on numerous occasions they did and the record is replete with letters from claimants counsel raising to the court reasons why  discovery that the claimant sought was necessary or relevant to their claims and they never are you want to taste and never gave the district court a basis to conclude to change the result if they put in the word statute of limitations the district court would have then been able to analyze that something that happened after two thousand and four is what's critical so let me if i may i can do this afterwards or or before hand i do want to make a point about how the how the discovery rule correctly granted summary judgment and the point that i want to make is the nexus in the case law when it comes to the discovery rule between being on notice of the facts and being able to conduct a reasonable investigation those two things are not divorced i think a lobby has made arguments that would divorce those two things so that once suspicions are raised whether or not there is a means to investigate those suspicions the clock starts run and i think that's not true under cases like kubrick and mcintyre and crown ish and what i think the record shows is that the investigation that was done i don't think there is a genuine issue of material fact that that investigation could have been done sooner and i think it's also important for the discovery rule that the way the cases apply it is that the investigation and is measured against what can be learned from people besides the wrongdoers you  on the basis of what you record so just two quick things about the record your honor pointed out which is that that record also includes a number one sustained denials by a lobby and by the government of iran which i think is relevant if you look at mcintyre when the wrongdoer is denying the conduct and number two it illust be it illustrates that those investigations came to nothing the i r s and the ofac came up with nothing as a result of that just like the gab a plaintiff did just like the flat  ok so in my final sixty seconds or so  trying to distinguish this from torres where there is sort of a dollar for dollar ability to correlate these things but i think ink in the light of the forfeiture law which the purpose is to divest wrongdoers of wrongfully obtained property whether or not there is a single dollar for single dollar correlation is not the question this isn't designed to create a windfall so that you can commit a crime and retain property that you would not have retained without committing the crime and then pay back some of it but keep some of it right that's that's not the purpose of the laws that's not what proceeds means proceeds means any property obtained were retained as a result of the commission of the offense and in light of the timing issues i'm happy to address any questions the court has independent bases for forfeiture one and as as property obtained or retain the proceeds theory because of the offense the other is property involved in money laundering and the property involved in money laundering fining is not affected frankly by any of the other issues we've been talking about including statute of limitations and if that finding is affirmed the and proportionality finding is affirmed then the arguments about proceeds with respect to the partnership in the building fall away there still could be an issue with respect to some of the arguments a lobby has raised about the other properties but for the two properties the money laundering finding is enough to sustain the verdict in the judgment  last point in terms of the retained theory complete speculation there is no it's not dollar for dollar the jury was given no basis to infer what would have been saved your honor asked about the involved property involved property money laundering forfeiture depends on the being proceeds if the proceeds here were explained that these properties were retained that's the first step in a money laundering forfeiture theory that doesn't work either in terms of this natural imitations this issue was before the court we addressed it we briefed it we put in the court's order in the appendix this was alleged is a continuing offense the court gave what we like to say the cake and allow the government to eat it too forfeiture was allowed going back to one thousand nine hundred ninety five even though the government's alternate theory is they relied on events after that date the government relied multiple times on the record the record the record with what was before the court here in terms of stature limitations the reality is the government used its lack of knowledge as a sword and prevented us from getting the discovery that we should have gotten you can't rely on the record because the record the record was concealed it was said by mr lockhart i think inadvertently that the district court reviewed all of the materials that were redacted that's not true it's absolutely not true thousands and thousands of pages were done she reviewed a small sampling and she thought it was ok to enforce the law enforcement privilege a small sampling is not enough particularly if you look at the particular document that i addres up with the documents that were discovered or that were produced in response to those to the search warrant are you saying that that that that's not the way to understand it i am saying produced the same thing those are three fine is the district court did not make didn't even try to make so the stipulation that the play was amended based things and that's exactly right and the discovery was done over two years after the government had been reviewing our unlawfully seized evidence what do you what about the argument that they only relied on documents that were actually produced in discovery they were not relying on any other documents that were seized that were not eventually produced in discovery so the complaint and the discovery requests were based on the unlawful search this is a classic fruit of the poisonous tree they can't say unlawfully seize our evidence review it and then asked specifically in discovery give us this material and then say would you produced it so it's good it mended their complaint we said that the decision we said that they amended their complaint based upon with regard to pre ninety eight based upon what they discovered from their search work but did they  prove or did they then trace what they what they used as a basis to amend their complaint to show that you had disclosed in discovery no no not at all not at all there was no absolutely none of that so the complaint was based as your honor found in the last panel on the unlawfully seized evidence the discovery came after that i think the last panel also mentioned that the discovery was based on the all lawful search one can't say because you produced this material it's just like a it's just like a identified as people who would waive the fifth and testify at trial and were available for depositions that happened on march seventh almost three months before trial and here's what i want to correct the government did not write to their counsel and say as mr lockhart said is it in fact true you're going to testify it's not what they wrote and i mentioned is not just to correct that statement but this is at the heart of our claim of government abuse because what the government didn't set it take the deposition is write a letter the likes of which i bet none of you have ever seen before they wrote a letter saying the government writes to inform you of its position with respect to the statute of limitations it's the government's position that the statute of limitations for bank fraud was never mentioned before this is eight years later after they decided not to prosecute anyone the governor the statute of limitations for bank fraud and bank fraud conspiracy has not yet run and the letter goes on to say we wish to be sure that your clients make fully informed knowing decisions regarding their possible testimony they didn't wish to be sure of anything except that those witnesses but once again take the fifth that's all that was going on thank you thank you well