good morning your honour's catherine young to the general public defender's office for appellant know who these are and i'd like to reserve a few minutes of my time for a bottle mr friess r is appealing his conviction for failure to comply with a lawful direction the first point that i want to turn to is that mr is mr his arse argument that the case must be dismissed because the government destroyed evidence the government destroyed video evidence of the offense after mr who's are had repeatedly requested the video evidence and after the government had represent zaragoza where those courts of the government violates the defendant's right to due process if the available evidence first presents exculpatory value that was apparent before the evidence was destroyed second was unavailable  other comparable evidence was unavailable by other reasonably available means and third the government acted in bad faith and feeling to preserve the potentially useful evidence and i want to make the point here that when we're talking about bad faith the government has argued that to constitut faith you have to have the government actually looking at the evidence seeing that it's exculpatory and destroying it intentionally to deprive the defense of a fair trial and when the government made that argument and sarah go said this court held we disagree we don't think that that that's the standard of bad faith that applies here insana gosa it was another also a video case where the defendant was in a line said that she was making gestures and trying to make herself obvious and there was video evidence of that line which was described by the government the judge below made the point counsel that he didn't believe that whatever was shown on the video was even relevant because the conduct that he relied on had occurred all before the video evidence that was destroyed so how is it in any way material well it's actually material because one of the things that these are goes to court says it doesn't have to material just to a defense but it also can be mitigating at sentencing so there's a lot on this video and covered the entire encounter accord to a stipulation with the government between the defendant and the officer and so there's a lot in there would be material but the court did focus on one particular incident in which the officer apparently said it's time for you to leave and mysteries or didn't react immediately stood there and talking and the officer pushed mr the evidence was actually that he was argumentative and continued cussing and doing what he was doing before not that he just didn't leave correct he kept on top and he kept on arguing i talk but one of the points i wanted to make is about the officers credibility because there were a lot of things that the district court looked at in terms of the officers testimony that makes the officer problematic witness that the video was it put the government on notice that the officer was a problematic witness and that the video would have been potentially exculpatory so what was on the video i mean it was the entire encounter on that is you know government stipulated that the entire encounter would have been on the specific request and continued conduct that the court relied on there were certain first of all the district court look to the fact that as castello testified that we star was pounding his fist on the table that was something that wasn't in the officer's report you know that the officer didn't even arrest mr wheels are for failure to comply so he didn't include that report the witness who's table the government witness whose table is allegedly pounded that was kim said that he didn't remember the pounding so we've got this pounding that leads up to part of the evidence that presumably led customer to intervene that we that is disputed it's not in the report it's not confirmed by the government so the witness the second thing that that castello said led him to intervene was that was are was asked by management to leaving and mr costello just shoved him at the door and with the video showed well i think it would even it would certainly show if if the security guard walks up to the defendant says something and the defendant continues to sti know if it's occurring to the security guard he was argumentative he was cussing you would certainly see body language evincing that type of conduct and instead we have histories are saying he was actually in the process of leaving he did never refused to leave that i mean we're talking about a bench trial here that argument was made to the magistrate judge magistrate judge understood that that was the argument that was being made but he rejected it because he said he didn't think it was relevant so why are we really talking about reminding for an adverse interest what would the magistrate do if you remain and it were an adverse inference because i think she didn't credit the fact that this is the video may have disproved all these other and these other aspect you know come to where is aiming it would have shown that we don't this isn't something where it's can see there's a concession that it's exculpatory it may or may not have shown that correct now but i know you're correct that we don't know what it was shown but in  interject the question i think i may be mistaken but i thought your contention first was that the nature of the tape was such that the problems with stella's testimony and we have numerous requests for the video and the government's own promise to produce the video within the time that we know the video existed and unless there any further question i had a question regarding i'm sorry go ahead saying you understand you have to leave if you don't leave we're going to have to arrest you they make it clear that it's a directive not a comment that you know it's wrong so there's the issue there was an issue in the case whether the direct you i'd like to reserve a few seconds of my time i'll give you a minute or two to thank you good morning i'm at peace the clerk carly palmer on behalf of the united states before we begin i'd like to make two brief points the first is that this is an unusual case in that the sr court has already evaluated the defendant's appeal and issued a reason decision regarding why the appeal lacks merit and the second is that the defendant's briefing frequently mischaracterizes the admitted evidence at trial and discusses outbursts the defendant made during other witnesses testimony as if it were sworn testimony or as if those were presidents put forth either in writing or in courtroom by the defense counsel it talks about the impeachment of witnesses that were never cross examined and it talks about the contents of declarations that were never admitted into evidence record at this point it is troubling and i guess i'll go with the first line of question that i had and the video what i mean there's a look in your briefs that you really respond to defendant i'm not sure i understand how that can be made if you don't know what was on the video and the video captured everything that was there i think the idea that the adverse inference wouldn't have anything to corroborate that's why this would be different than start there goes that  there wasn't evidence put forth by the defendant as to the time period in which the national judge found that the defendant first violated the code and the second point the second point that i think is relevant to the video i it's absolute you know less than ideal it's absolutely problematic that the video wasn't preserved but the burden on the defendant under youngblood is much higher than that and i would point to this court's recent decision in robertson in which the court found that the government's robinson case you mention was not going to let the government's failure to get some other evidence as opposed to the government's destruction well the evidence that the government had represented to the court were would be preserved so it was the failure to preserve video after it had been before it was recorded over which is similar so here the video was still in the social security administration's possession and it was boarded over itself after four months however the magistrate judge made a finding that there was no bad faith she made a finding that it was just a lack of communication and she didn't find any evidence of the prosecutor defense attorney who sought to be appointed so that they would potentially be seeking evidence including video and the prosecutor on the he said that he intended to provide all evidence including any video evidence and that was at a time before the evidence and that was followed up in writing so it was both orally and in writing that's what so and i believe one of the references it was we have that will give it to them and that was both orally and in writing so i'm just trying to figure out you know what do we do when you have that kind of i think you know evidence that could reflect what actually happened there that there was only one witness with respect to defendant presented no evidence and indeed no argument that the video would have shown anything relevant to what happened before officer castello put his hand on the defendant about the pounding on the on the podium are on the on the on the desk i mean those kind of actions are what escalate to the point were an officer may need to have to come over or not there were two other incidents that of custom low was the most important thing here so i think if the defendant's primary argument regarding the school that's very value of the video is that it would have somehow impeach the credibility of officer castello showing  consistencies in his statements then we need to look at the reasonably alternative evidence part of the text and if that is what the primary purpose of the video what ben than other great sources of evidence for defendant would have been the decision to cross examine that if the government's witnesses discretionary decision by the plaintiff's counsel and if there were clear that the evidence would be available i'm not sure what the need would necessarily be for the cross examination that you're itching that would appreciate your perspective on another principle now this isn't non circular law as far as i supreme court law but there's an ancient right roman maxim the says something like in cases of doubt it's best to bring to the side of mercy that's the substance of this and my question is in this case there was tremendous doubt precisely because the government destroyed the evidence even if not faith but there's doubt about what happened because the government's conduct contrary to what the government said to the court it would do the standard in the ninth circuit regarding the magistrate judges finding that there was no bad faith and this was simply a lack of communication that's owed a clear error review and in fact at the trial defense counsel that i'm i'm not going to argue asked to leave the statement it's time to leave isn't the same as directed to leave well what was costello's statement that he said i see my time has expired me and continue to answer your question course so there were two statements the first statement it's time for the needs to be looked at contextually it's after the defendant had pounded on the table after the service representative had said i'm not going to serve you anymore after the service representative had closed his windows after mr has or had tried to push his way through those windows so standing in the way of government property standing the way people obtaining services it's after the service employee called over officer castello who approached in his uniform with his bad already refused to comply with to verbal orders but it's time for you to leave that let's not i don't know that that's an order that's a statement of fact and i'm so i guess i'm just trying wonder if this were  a police officer working a demonstration or protest and they arrested someone immediately after saying it's time for you to leave would that case be present your office would so offended that he closed his window and continued to do that i don't think the meaning of have been any more clear so your argument is the context of the situation you can't just take the words that you have to consider the context of the situation and i take it it's also your we say that their internal inconsistency is in dispute as to what exactly happened with respect to expel this testimony also the comment that the video did not record sound i think that a lot of what we're talking about is physical contact the even the the cussing and everything that would have been recorded in body language that would show up on the video had it occurred and so you heard that context here is really what the prosecutor is emphasizing so why should we look at the c the few seconds of the offense is disputed both in crystal is on report and by the government's other witness so i think that to the extent you're relying on costello's testimony for what preceded the offense that's unreliable and the video would have helped us to i think he said he wanted to file suit because there had been excessive force used against and that was after this command to leave that would have been after all of that was and how i had been arrested was anything else i mean that was what the government was told the first time was to be excessive force claim was something said different later in the over that was in november at the on the date of my defense that's what he said and no in january he said he asked the prosecutor for it at the first appearance before he was appointed counsel and at that point he said that he had to i think he said that he had resisted and so he wanted the video to show that he had not resisted the officer and i think he also again reiterated the excessive force that had been used by the officer and then the defense just argued in