dependent appellant cannot fill at the district court for his trial mr bell argued that the government would not be able to present any evidence of his participation in the charge conspiracy that did not come from cooperating individuals who would be significantly discredited during the course of the government's case and mr bell's cross examinations this was established all of the witnesses who claimed personal knowledge of mr bell selling heroin today as part of the charge conspiracy were significantly discredited they contradicted each other they contradicted themselves with that this is not the first time that's happened by the way you know in this type of conspiracy certainly not judge but with that as the backdrop the thing that is different is then the government put into evidence an unrelated controlled purchase apparently but that's because the defense counsel invited testimony that this very broad investigation had taken place and that nobody ever saw mr bell doing something wrong and had to port not permitted the correction of record on that point the jury would have been left with a very misleading evidence was a fact a laundry list of investigative techniques that were used and in fact the opening statement language was specifically tailored to prevent any improper inference that it was all about his participation in the charge district court simply had to make it mean he i am aware of the language that you're suggesting but the jury could have heard that as a blanket statement that there was no incriminating behavior on the part you know using these techniques however you want to phrase it and that simply wasn't right and i don't think this is something that gomez rules out this is nothing this is not a propensity issue at all it's like did x happen and that's all there was and you are not correct however mr brumley the district judge made this call based on a misunderstanding and misstatement by the prosecutor about the actual language used in opening yes your honor and that was pointed out before the district court the government suggested that the argument that mr bell was going to make was simply different than what he had in opening statement mr bell specifically said there are all these techniques and there was no evidence that you'll find that mr bill participated in the charge conspiracy and they were we went on in opening statements to say that this isn't about some other transaction or that he never committed some drug transaction another case by this charge conspiracy we did everything we could prevent the invited heir and gomez still apply this court in kurdistan and schmidt has had invited their arguments and applied the the government decided in its response brief there was always the defense presented affirmative evidence that went to an element of the case there was no dissent why isn't correcting the record you know if the record gives the impression that x never happened that x actually did happen light winds and correcting the record a valid purpose i don't see why that's a propensity per well i think it think about it another way judge every time you go to court and you have a prior  admissible the jury's going to automatically there's a good possibility when further he never committed any drug crime in the past that's not prejudicial to the government the jury might speculatively make that inference when never argued for would never ask to that that's just a totally different situation that's not very unusual assuming the jury just didn't follow the actual instructions that the district court gave the instruction to that instruction said you can consider this only as a rebuttal to evidence about the investigation this purchase was not part of the conspiracy so she's telling the jury can't look at this purchase as part of the conspiracy and you think they just ignored it no i think that if they followed that they had a big problem because the only evidence mr bill put on about the investigation that the just far as any reasonable juror could understand was that the investigation didn't indicate that bill committed the charge conspiracy or participated in it and this she says you can consider the prior act to rebut that evidence the jury then can think well then we consider that to determine whether he's guilty of the charge defense whether he did it or he says the investigation doesn't indicate that an other thing she didn't do erotic is what goldman says she didn't give any of the limiting language which saying you can't use it for other purposes she didn't do that she had asked for an instruction that basically said you should disregard it because it can't be used to show the defendant's guilt in the charge conspiracy and even when trying to determine what the purpose once when talking to the government the judge said well the based on the language she all old timidly did give she said that language seems kind of wishy washy what's the purpose and no one could ever really identify a good purpose for putting it in and the only one that's ever been identified is let's try to prevent the speculative possibility that a jury might conclude what they could easily infer if none of this was ever put in that he never committed a prior drug crime they might do that and the idea that that is opens the door for the admission of a prior drug crime in a drug heroin conspiracy case that has never been indicated in any prior case law before this court every other case has had affirmative evidence from the defense the with to an element not in an argued and unbidden possible assumption the jury could make just really in your opening statement i'm screwed is i'm quoting from the page forty six you said that evidence will show you how mr bill had some of the money that he had but ultimately keep in mind the government's burden in this case is to prove these guilty of conspiracy not the money not that he may have sold heroin on a couple of occasions but to prove that he was as they put it the c e o of this conspiracy i don't care what was the reference to may have sold heroin on a couple of occasions there in the well we didn't know exactly what the cooperate in witness evidence would be what were our argument in the case was that they couldn't prove that mr bell conspired to these people to sell hair or if the jury were to have found that if there was some unrelated heroin sale that or come to that conclusion for some reason we wanted to say look that's not what this is a map and the other thing we were doing judge was really trying to avoid this invited areas he would say look this is about the charge conspiracy the government agreed not to put that in and we were trying to steer clear of it and we thought that we had by using exactly the right language and then we gave a laundry of the invited their doctrine says you put in inadmissible evidence then you can get you can do something else or if you make an improper argument for him we didn't argue for the improper interest inference and everything we put in was admissible they didn't object when we didn't draw special attention to these control purchases it was just one in the list because you want to so this is an extensive investigation if it was this extensive and the cooperators really saw him there all these times he supposed to be there they would have seen him too and that's that's perfectly permissible that's really you know before your time runs out i'd like you please are facing that there is reason to doubt and then when you inject into that the only objective proof that he ever sold carol that's undeniable because it's controlled purchased you inject that into it and then you're in a position your honor from which it's almost impossible for the jury say well before we must of done it later with that in mind i want to highlight one thing for the court the one thing the jury asked for and this is it page one thousand three hundred fifty three of the october twenty fourth transcript they asked for a single video and if you go back and look at the record the video they asked for was it a particular a dress and it was a mr walter with mr bill it was the same address where the control purchased took place so there is evidence suggesting that what material under brady and second is if the court agrees with the discussion you were just having with mr brindley about the other act evidence that was admitted related to mr bout what does that do to mr walton and since we're discussing that first issue i will turn to that second issue right now interview oversea united states the united states supreme court recognized that when evidence of a co defendants wrongdoing is admitted in some circumstances it could lead to a jury to conclude bell there was a single indictment naming both of them charging that they conspired together the government stressed throughout the trial including in closing argument that walter and bell worked together on this conspiracy so i mean you have briefed this point i think it's a hard point for you to make given the lack of a request for a severance and the fact that this was a conspiracy i would like you to say a word or two about the district court's decision on the nesbitt admissions that the suppress supposedly suppressed evidence just wasn't material enough to make a difference on the british or on the  as at least it relates to mr walter nesbitt and forrest carried in the most evidence of guilt there were up there was other evidence of other witnesses but it was very minimal so if you're looking at what the jury considered they saw these two witnesses that talk the most about the the guilt that you and that this exchange about for is you know is evidence for is still out on chicago and christiana nobody thinks he's sunbathing out there you know what that that surely means selling drugs and there are plenty of other things just given forest's record to impeach him perhaps the point is that without the evidence that the government in turn over that point wasn't able to be made as clear as the parents would've like your strongest argument on materiality i thought it depends on whether the government knew or had had information not just the forest was quote still out on a corner but the news would and force were still working together at the time of trial right absolutely you know the government says they didn't know that during trial and i didn't see a direct response to that  the government knew of this and they did learn of it after a trial they learned of this during trial and they learned of it only a few days after defense was making a point about this issue well the recall i mean there at the back of the briefs of the december eighteenth letter letter and the i'm just trying to drill into whether these letters are saying that nesbitt says i'm helping now maybe the second letter does that this isn't until long after the at the table two or three times or mixing heroin for that particular spot there's an apartment nesbitt is running bundles and working packs ok force and money so based on conversations believes a farce may have been at the table for chicago christiana prior to june as well i don't know i mean it well and i think the conclusion is because they worked together in the past the fact that he's telling the government show that they were working together at this time as well but returning to the point about the fence had raised this issue because nesbitt was this close as a witness immediately before trial and they the fans raise this issue to a motion to continue the trial based on that make disclosure saying that they were prejudiced because they didn't have an opportunity to fully investigate his role and they were concerned that he has been forced maybe working together to conspire against walter and bell and the fact is that they were admitted to the government the government learned during trial that they were selling and involved in the sale of heroin while at the same time working with the government to convicts about one walter at the very same street corner s money had the defense had that information at the time it would have been excellent impeachments of their credibility and would have been additional material to tell him you'll it for sure i think it's highly relevant that the fact that it's the same street corner that they are selling involved in a heroin conspiracy themselves while the same time they're trying to throw someone else in prison for the same charge it could certainly show that somebody else are trying to protect somebody else who r and the point is we what the defense would have had that opportunity if the government simply would have turned over this information they don't explain why they didn't do it because they can't they learn that the fence one of this information multiple times including two days before they learned it yet they didn't do anything until after trial when it's of no use i reserve the time i have  didn't the government just tell the defense about the dunn disclosure when it happened it seems like such of this gap your honor on that issue the information that the governor i guess i want to correct the record on that issue first because it was just said by walter's attorney and second from what i saw on page one of the the walters replied bridge there's an issue that i think you all raised but through your question of him which is exactly what did the done that forrest was selling drugs at the table on a regular basis that's one then that he was selling those drugs for someone named k mart and then third that they were using an apartment near chicago and spaulding those were the three facts that the government learned first from a conversation between nesbitt and agent dunn i think while he was outside judge baugh close courtroom during some break during his testimony so that's what the government learned and what you see from walter's brief and what walters attorney has been saying here is that table how else does news but know that they've known each other their whole lives nesbitt's been involved in drug dealing as a life but had actually been in the lead up to the trial i mean maybe you could assume that but nesbitt had many reasons many different ways he could have had a basis of that knowledge would be the natural question right yes the first question that the defense would want to pursue rain so why not disclose this i think it's it's not in the record but i can i can explain to the court of if you'd like me to do the issue come up in the district court did you explain that they're not seeing the problem is that by the time you get to this february ten letter which you've reproduced i was looking at the original of it a minute ago  you have the exact kind of additional information that judge hamilton is talking about nesbitt's talking about running bundles working packs at that corner he's talking about giving forest money from heroin sales and what i'll say is you know we as soon as we learned that detailed information we had nearly turned it over and it wasn't until the plane guilty that he was willing to talk to us about the problem the problem is that with brady information you got look not just at the surface of the information but about what the defense could do with it you know often for example brady information will not be directly admissible because as we and i have said before when i was a district judge you knew even if it's not in admissible form as it comes from the government the defense may be able to pursue and for example turn the police record of an interview into the appearance of a witness so you've got to allow some room for that investigation and that doesn't seem to have happened here i i guess i guess i'd also like to say that had had this all come out as you know of this information that we learned after trial what we learned both during trial and let's say all that information that if that had come out early the next year that that information all came out during trial there would have been no reasonable probability that it would have actually led to a different verdict in the case and here's here's bunch of the reasons why first of course that the crux of that force was still out dealing drugs was cumulative of what nesbitt had already testified to not only thirty's he had nine felony convictions when he pled guilty on that f n c case i think that was his tenth and eleventh convictions so for them to be drug dealers course was no surprise and the jury heard all about that rain testify that was then this is now i've decided to cooperate with the government until the truth is i promised to do and so on and so the fact that a cooperating he testified in a green jumpsuit from state court so that what that means is that the jury knew that and he didn't testify yes i dealt those drugs but he told the jury yes i've got a i have nine felony convictions and i was recently charged with drug redirect and so so that was out there that the jury knew that nesbitt had this pending case against them with respect to forest forest had numerous serious violations of bought in and i don't think that they there ma few violations after he started cooperating it's true though that the more serious violations of his bond occurred before he started cooperating which was made mostly gun dealing while he was on bond but i want to talk about why that defen argument on the collusion would have held no water and truthfully why they could have made that argument with the evidence that they had but they chose not to and here's why to claim basically the claim that they have said that they would have made it was that forest and scott and other witnesses separately and long in advance of the two thousand and thirteen when they criminal did these defendants and that came into evidence mostly on redirects when the government was putting in prior consistent statements after the defense accused during very lengthy supplier and walter as for his role in the drug trafficking organization with respect to forests he pled guilty in his case in march two thousand and twelve before he was cooperating with the government and during his redirect which was on page six  seven of the transcript forest testified that he identified bell and walter in his plea agreement before he cooperated as individuals a and b an individual a was a supplier individual b was another it was walter who was giving the drugs to scott similarly was arrested long before he was cooperating this is in november of two thousand and ten and when scott was arrested he identified bell as supplier he testified to that on redirect so all of that and that was on page one nine seven of the transcript so all of these witnesses had separately and long before two thousand and thirteen identified these defendants as a supplier and also as walter is a member of the d t you know so and one other thing i want to send that is these these cooperators and people selling drugs these spots for the most part knew each other their whole lives and have been out there selling drugs together for a very long period of time if they want to make that collusion argument they could have used all of that from two thousand seventy thousand eighty thousand one thousand and ten those guys were out dealing together for years and they could if they were going to collude they had the relationship the previous relationship from years that was all that was out there the defense could have made that argument and then of course the defense h sort of forces still out there that the jury heard that the defense simply didn't make those arguments and the reason i think that they didn't is a it had no basis in reality and b it would have been very easy for the government to rebut based on those prior consistent statements that i just mentioned and also other witnesses testimony i'd like to ask you some questions about the four four b problem you have as well but i'd also like you on with this a related point here a perception i have that i'd like you to address which is there seems to me to be some tension between the government's and district judges positions on harmless error and materiality with respect to these two issues and what i mean by th rationale on four hundred four b being harmless seems to be the rest of our case is so strong rest of the case looks like a lot of abuse scott news but you know for us in my misunderstanding the i take your point on with respect to nesbitt and forrest and i think what the government had said and what the district court said forrest truthfully was a witness who said one was like a roller coaster even on his direct government notified it was going in such a way  coming up so many statements that i notified the court that we may seek to treat him as an adverse witness then he then he basically came back and then he went on cross and he basically changes statements again and so forrest i called him a defense friendly witness he really wasn't look at the government's r al arguments we said he was all over the place in his testimony that said there were portions of his testimony that were consistent with all these other cooperators testimony and they really did not have the same cross on forest as for example jeffrey scott so turning to the harmless error you meant on the on that for a for b issue what the government had was it's common to have a cooperator or maybe to cooperate it's unusual to have five cooperators and that's what we had against bell five cooperate hers and the wife excuse me that the mother of two of his children who testified about his all cash no a t m lifestyle so in fact there was a very strong case against bell unusual in the sense that there were just so many different witnesses lined up against him who had provided that government that information separately at different times in the month and walter we had seven witnesses against him so even though i think proposition the notion of inflated air and opening doors yet but going through bells opening the transcripts of live see and when and then the debate about the about what to do about the introduction of this for a for be evidence and what to do about the instruction it looks to me why you had misunderstood or misheard or mis remembered what they actually said because the opening is quite specific no evidence of a transaction with anyone alleged to be involved in this conspiracy you know i was trying to think well because suppose the defense or use the government the bank robbery case the government has no evidence other than a cooperator tying my guy into this bank robbery the government can respond by saying well yeah but you committed a bank robbery a month earlier right times in the opening and then there were also the big part of course was in the defense case where they decided to go much broader and that's where that's where they crossed the line from what would have been a reasonable totally reasonable reasonable doubt defense and i noted here on page thirty three of the government's response that when when bell's attorney says this is an opening and said the evidence would show that law enforcement did dozens if not hundreds of controlled by us where they sent officers to go purchase straight hundreds of control by first of all we never did hundreds of control buys in the entire investigation that was done so misleading so you think that comment opened the door to for a for be evidence no no i don't i think i think the open the door really happened when they when they took the step of calling the case agent officer let's see and put them up there and ask them to go in great detail and there's another point where they your honor where they went from just talking about this conspiracy which is much smaller than this huge investigation that we had done an yet then why isn't your response to the examination of lips and women simply to ask the district judge to prevent them from making the broader argument that you think is unfair rather than go is this for a four b thing it looks like just pure propensity to me i guess once once that argument is once that is out there that  they went so far as to describe all these control buys in great detail more than one hundred and some of those weren't even the same drug much less evident do with these many of them were crack cocaine buys for them to just put that out there and suggest the government had this massive investigation got all of these that most of which had nothing to do with this conspiracy they were going to they were that that implied that none of those control buys were into bell and it suggested they were going to make that argument and i don't so why not prevent the argument rather than hope and this is you know with all respect reading the argument i didn't see a coherent argument as to why this was relevant to an admissible to two irrelevant fact have any relevant fact that it wasn't there was not relevant until the defense made the investigation of the types of evidence that the government attained relevant we weren't planning on putting this end until they went for with this defense and then they called the started up calling the government agents to basically talk about all of the evidence that was obtained in this very broad investigation the breath of the investigation helped them because if they focused on this conspiracy the answer would have been very deaf and that's what they should have done then they made it broader and i think the way that judge bucko the way that we handled this and she allowed to happen was reasonable even if it wasn't the only way to do it and then she followed even though we didn't have the benefit of gomez at this time she followed by giving a jury instruction that was tailored to show exactly what they could consider it for and what they could not consider to rebut evidence an argument that was not made right well evidence that came in about the government's investigation that they they had they had they at least left the jury with that implication that none of that evidence was against a government didn't have the type of evidence against  in that will be fine i will give you a minute mr brindley you are to begin with i'd like to that last point if they were really worried about the claim that the government's worried about them they could have done with this thomas and asked for a much more limited response they could have asked the agent the question well were all of these control purchases part of this particular investigation this particular conspiracy the agent says no that eliminates the problem they should do it in that limited way like this courts it is appropriate in thomas and that in the prior act with respect to the materiality issue and the brady the standard for the government isn't exact what they knew but what they knew or should have known based on that information and the question they would ask jesus forces out on the corner is how do you know then you're going to have a confession from nisbet to them that they can hold over him in a new form of bias that's what we should have gotten from the in the didn't because they kept it from us and didn't ask the follow up question that they acquired is the other thing in terms of materiality is a mess but we were told about this and we confronted ms but there is a strong possibility or even force that he might exercise fifth amendment rights if he did his testimony would have to be disclosed excluded and we talk about a mistrial and that's a that's a more than negligible possibility of a different outcome that makes this material by itself there was no indication ever given that while cooperating and this was selling drugs that did not happen and if i could just make one final point the government argued didn't as it was so much better than these other people as a witness because they had these cooperation deals and they were worried about the government knowing they committed other crimes if they had followed up on the question like they're required to do and asked how do you know when he said lie and they're doing it to they would have had that same confession we would have had that and we would have been able to rebut them bury argument they made about noise but in course that's why it's material tha oath about their using and dealing in drugs the jury might reasonably have supposed that they were lying about the criminal activities of the defendant as well that's the essence we were asking for the defense was asking for this information the government knew about it it didn't turn it over i've heard a lot of predictions about what the government thought would have happened had they turned it over we don't know that but we have to show is a reasonable probability of a different result these are key witnesses information that offense was asking for information the government knew about and they didn't give the defense i think it's it's a this court can easily conclude that there is a reasonable probability of a different result thank you thank you and you were appointed i believe and we