my name is david quarter i'm an assistant federal defender from the eastern district of california and i represent the defendant the talent william franklin dope of all me the central issue in this case is whether the state court of appeal on reasonably applied clearly established federal law as an on see it in brady versus maryland now the brady claim as three elements the first whether the evidence was suppressed there is no dispute about that in this case the second is whether it's favorable to the defendant that means whether it's it tends to exculpate the defendant or impeach is a government witness and third whether it is material that is does it put the case in a sufficiently different light to undermine confidence in the verdict isn't that the touchstone of this case i'm sorry isn't that the touchstone of this case i think reality both two and three both the favorable to the defendant and materiality the court of appeal seems to it is violated when weapon is brought on jail property proper correct yes and before the jail attendant came out and talked with your client your client was on geo property unconstitutional as applied because it is unconstitutionally vague and the second is that even if the court doesn't agree with that argument the jury instructions very clearly said in this case that there are several the defendant could have violated the law and agreement on any of those ways was to fishing to reach of guilty verdict in conjunction with that the and in accordance with that the jury rendered the general verdict so we have no way of knowing which basis the jury found whether it was because he was sitting on a planter or because of the because of his because he came into the jail that the jury decided the verdict on and therefore under griffin and stromberg and the cases that we've cited in our brief that decision cannot stand when you have an unconstitutional theory  of liability that cannot stand if if there are two legally insufficient theories then we presume that the that the jury correctly decided about the factual basis and where there was sufficient facts to support the verdict but in this case we have two bases of liability both are being attacked as unconstitutional the one on the brady claim and the other that it is face that it is u correct i mean you're saying that he came out and lowered your client appeals entire discussion of the issue is in a single paragraph in its decision and it plainly misconstrued the extent of brady on multiple levels it's quoted on page twelve of our brief and it says the bulk of the materials were collected after trial and sentencing we've examined them and none of them support the entrapment defense first of all collected is not the essential issue under brady it's whether it existed and was in possession of the sheriff now when it was collected and and through saw speedo's testimony at the the anthony trial he conceded that the sheriff's department knew about this evidence more than a year before his firing and that predated even the trial in this case but more importantly and then we also cited ambler and thomas versus goldstein that even after the verdict evidence the are there is a continuing duty for prosecutors to reveal brady material even after the verdict but even more importantly brady was construed too narrowly by the court of appeals all of the impeachment materials listed at page ten of our brief but these materials clearly impeached sausalito they were evidence of motive of bias because he was trying to keep his job with the sheriff's department and they clearly show that he abused his power and under  with the state court did not undertake a careful balance devaluation of the nature and strength of both the evidence the defense was prevented from presenting and the evidence each side presented a trial is exactly what happened  here they go on to say the state courts analysis are prejudiced amounted to little more than a blanket assumption that because the experts reports were cumulative they would have had little impact on the trials outcome is a blanket assumption here that after trial conduct and therefore it's a relevant to brady also mr understanding of brady first of all the government at page sixteen of its brief offers only one instance of misconduct that they say is after the trial entered so i think the court of appeals is just very clearly wrong in its favor in its examination of the second issue the second element of brady as far as materiality goes it was very clearly wrong and so was the the district court which by the way did not even look at did not even bother to get the records from the state court of appeal and i would quote this court's two thousand and five decision and stil brown it says we cannot overemphasize the importance of allowing with full and fair cross examination of government witnesses whose testimony is important to the outcome of this case so i see those evidence was clearly very very crucial to this case and the inability of the defense counsel to cross examine him based on the brady violation was crucial and undermines requirements of due process but after a conviction the prosecutor is also bound by the ethics of his office to inform the appropriate authority of after required or other information that cast doubt upon the correctness of the conviction and that is a citation to a b a standards of responsibility that is not brady that's not even the same standard of materiality that's like an actual innocence claim  about the fact that we really would have a pretty simple case with this fellow was sitting on the platter and he had these two guns on him and they were concealed and that was jail property and he was forbidden to have the guns in jail property but mr porter says that apparently there was a general verdict here and that it's impossible to tell whether the jury convicted him because he walked into the jail with the guns or they convicted him because he was sitting on the planet with the guns what's your response today and i don't bite on that your honor because of that please don't bite on that because that is a i think red herring this is the requirement that the counsel is talking about has to do with a theory which isn't supported under the law so you'd have to go a number of steps before you got there first of all you have to say insufficient evidence to support a verdict that he wasn't in craps and i argue that there's a third of your answer is mr porter is wrong as long as under the evidence the jury's verdict can be supported correct you look at the verdict in the like most favorable to the government and that's all that's required is that correct that's correct and your honor you know and other than that what else is there in this case we need to be concerned about well the  i'm concerned about counsel characterization of the court of appeals discussion of the brady is absence question was what we should be concerned about that this court of appeal in fact did it correctly apply the law in that in the case the court of appeals focused on the the definition of materiality and whether or not any impeachment would be and that's a question that's determined determined by reference to admissibility under state law and that's what the pages and pages after that were all about so with that i it seems to me it is very i'm not sure where the how far that extends if you're in a field next to the building or the wording of the statute your honor is on to jail grounds or adjacent to jail grounds and in this situation you can't do it it's a very good supply challenges the only challenge that could be made here and the evidence in this case the planters are physically attached to the jail wall right outside the doors and that's what the the evidence showed so so this is not only not only are the is the adjacent to actually attached to the jail it's not like a field one hundred yards away this is a defendant who's already been in that jail that morning and we've been let out of it and seen the signs about not bringing weapons into the jail i mean this is not an unclear or vague thing for this defendant about what's jail grounds and what are the rules about weapons on the jail on the jail grounds does that answer the court's question well perhaps if it's just was weakened by other than more than just tostitos testimony that i didn't say that to him i mean first of all officer hall who you know is not under fire here say says that you know the  go have nothing to do about release of the of other prisoners from within the prisoners come from within are processed and then go out two sets of doors outside and these two officers are sitting in front in the lobby there taking questions from people coming is about to happen and so that's what officers you know saucy to said he went out to do now this business about getting in asking the defendant to come in to get information from him that is like not in the jail protocol at all and that's according to officer hawke so already it's incredible it's an incredible sort of defense and and without reference to officer since he does own testimony about what he said and then there was also officer hawkes observations of you know from a few feet away the interaction between the defendant sitting outside and officer saw studio spoke to him a couple moments he sees officers just saw super head back into the jail it appears to officer hawke he says this on the stand that officer sussudio doesn't even know the defendant is behind him and he has gone ahead and he doesn't hold the door for it he just doesn't appear to he's oblivious about the defendant's presence so once again that supports the idea that offers us things so i see they didn't have some sort of like come back in with me interaction volney and saying well look at the testimony he testified he knew the plantar was attached to the jail that's the wrong test the first test is whether a common man understood what does adjacent mean the second problem with that is if you look at the  you know it reflects upon it that issue was totally different then at the time did he understand whether it was adjacent to the jail so the issue that i think troubles judge hawkins the most about the alternative unconstitutional grounds it's different than when you're saying one one ground is there is insufficient evidence another ground is unconstitutional we trust the juror jury in issues of fact but when the issues become issues of law legal insufficiency undergrowth and this verdict cannot stand thank you for your argument thank both sides for the argument the case just argued with minute for decision