do that just a few weeks later at trial but the court never considered lopez's fair trial this urge that forcing him to give the government all the details of his testimony before trial would mean that he had to prematurely decide whether to give up his th amendment rights in order to defend himself and also the unsealing the proffer would put him in serious disadvantage because it would give the government a detailed road map of his entire defense the court's decision was not in line with carpenter which held that before deciding whether to sealed arrest proffer the district court has to st consider and balance all of the interests and then exercise discretion and might of the facts of the particular case  here problem with the government exist problem with the district court's reasoning there are several problems but the main problem is that you never considered mr lopez's interest it solely focused on the government's and so at the when it denied mr lopez or when it rejected his proffer it specifically said i reject it this isn't your thirty three i have rejected the x party offering because it is asking you to do that x party there was absolutely nothing about mr lopez's just be patient for stealing no findings about whether it was compelling or not it didn't gauge in any balancing analysis and then that this doesn't remain sealed forever and so it's cern about the government's ability to test its adversary if they're going to be able to do that a few weeks later at trial and in fact here when the government had the proffer at the motion well because it forced mr lopez to decide before trial whether or not he was going to incriminate himself he hasn't seen the government's case yet he hasn't seen you know he hasn't put on his own white witnesses yet he does have to give notice  he doesn't your honor under rule twelve you have to give notice of certain offenses like alibi or insanity but dresses excluded and i think that's important it's one of the things one of the types of defenses that is and it's do not happen without the governor at a time and you know part of part of the harm here too is that there was an imbalance between the information and the parties were exchanging the government doesn't happen here mr lopez before trial all of its witnesses anticipated testimony all of the evidence that it's going  on and mr lopez did he had to go it was a you know three or four detail proffer of everything that he was going to testify to and in fact the government didn't disclose what its rebuttal case was going to be didn't give you know didn't sort of have this balance exchanged information surprise him with that rebuttal case at trial and mr lopez was in a serious disadvantage his counsel was not able to investigate what the government's our bottom witness was going to say he could talk to the wife and see maybe look maybe mr lowe has had a friend reach out to check on her maybe he sent letters and maybe he didn't have any money on his books to make those geo calls but he wasn't able to counter that because the district court forced him to disclose the entirety of his case before trial but the government didn't have to do the same thing and so not only require him to incriminate himself before trial and give up his  rights in order to be able to assert his th amendment right to present a meaningful defense but it also seriously disadvantaged as a preview of his entire case for the government arguments concluded we can for but but a panel of the th circuit and that carpenter case just held that defendants have not shown compelling reasons for keeping the direct proffer under seal on the public record even though the defendant specifically complained about having to reveal case strategy and argue with that public disclosure would be so why isn't this case controlled by carpenter her lawyer thought based on a criminal defense manual for criminal defense lawyers that it was a best practice to ask to seal propers and the other thinking was it had ethical concerns he had already i know assert addressed offense and he also alleges it was forcing him to give up his th amendment rights in exchange for his th amendment rights and so he did allege that this was civically harming him in his own case and those those reasons are either twenty eight dollars he says he would he would suffer prejudice of course to disclose a specific such as defense refile and indeed he's already been prejudiced by the courts disclosure and that he was being forced to disclose for six years between disclosing in his testimony and presenting addresses friends and so those aren't specific to his case in contrast to current or which were just a ethical and best practice concerns but the other difference in our carpenter suffered absolutely no harm in unsealing her offer the government agreed not to read her offer and so there was no she didn't really have her child interested balance against a public interest or the government's interests here the government did read the proffer and not only that but went out and investigated the offer and then showed up at trial with a surprise or vital witness and rebuttal evidence that mr lopez was not expecting i the the just of counsel's complaint that he had just he had to put forth enough with enough specificity that the court could make a ruling about whether out there was going to be with his evidence amounted to penetration showing right that's correct your honor and with evidence relating to direct it ends up being the greens it was i think that that ip said that you know they were asking a different question i am not going to push back on that point at all but if you just take a step back right we're trying to figure out not whether he gets to confusing the jury at trial the government hasn't really been interest in being able to normally participate in the pretrial proper proceedings that will determine whether the jury might be confusing to what might be burnt what i mean but in nd i think a very similar surprise the government trying to hold off on presenting your defense until we actually reach and i think here i'm just like those constitutional concerns weren't a significant enough in williams to overcome the state will require any event that i'm a little troubled by this that the district judge has the power to elicit more and more and more detail if we're making eighty terminations that the facts relating to reasons i think the problem is the discretion of the district judge in relationship to how much information needs to be elicited before allowing compelling reason i'm of the sort that might support i'm stealing your expert legal action even if this court disagrees on that point i think at the end of the day we are heartless i'm the one piece of evidence that boat has says prejudicial and it affects the birds this is good the government cites a lot of evidence and it's brief it claims was overwhelming all of that evidence was consistent with mr lopez's dressed and so the fact that he was driving a car that it was full of drugs that he was wearing his uniform that he lied to the primary agent all of those things were consistent with his dressed offense he testified how to and had told him to wear his uniform say he was honest way to work etc the one piece of evidence that was inconsistent with his threats defense was the fact that although he was concerned about his wife and daughter he had to call them in months since he'd been in jail and so that had a large impact it was the only thing that undercut his dress offense and the government recognized that it had that impact because not only was that its entire rebuttal case and it went to the trouble of all in those calls and calling that officer testify but it closed on that point so a couple examples are one hundred and ninety six the government said the fact that he didn't try to contact his wife and daughter meant that his dressed up and simply doesn't make sense you don't check on the two people that are being threatened that you aren't there to protect until march  then again it's rebuttal closing the e r to fifteen it argue that has to rest offense was a lie and pointed out that he didn't try to contact his family after he was in jail and told the jury why didn't those communications occur why aren't they here because they are not true and so in addition to the fact that this was a surprise to him and he couldn't sort of mitigate it the government really realize the impact of that trial it really undermines trust funds and then the nd point that i want to make quickly is  brought to the judge a warm ex parte it is very discretionary abuse because some practice in california was not follow i don't believe there's a set there's no local rule or set standard on this i mean i will tell you i practiced in the southern district for a long time and a lot of the district court judges allow defendants to make these parties acts proffer this district court is sort of an outlier and in fact has had a longstanding fifteen year general policy that you cannot make or ask for x party but that is sort of an outlier in the district but the last point i want to make is the government sad that if this w sort of yes the point is he has to put forth in detail to satisfy that prima facie case as judge cristol noted and when he does that he incriminate himself because he's got to admit all the elements of the and when he does that and then it's kind to know in advance about the parameters of the defense even though there's no legal requirement that the notice apply to defense the district judge has the discretion to conduct the trial fairly avoid surprise and regulate the introduction of evidence and to do that the judge requires the defendant to come forward with some kind of evidence that would justify the fence so and the question is whether that should be private ex parte or public and the district judge in a very uncomfortable with that spreading the information and what happens at the trial there's a judge at the say anything about this you're tracking the judge by next part take a set of information and i can understand and write this district judge would say i don't want to do that i don't want to be part of that well i think i don't want to overstate the importance of this decision that the district court was making this was just a legal finding whether there was a prima facie case to go forward at trial and if the district court's wrong about that that evidence can be stricken later the judge doesn't have to give an instruction the jury can sign that there was not enough to meet all the elements of the arrest and so this is not sort of a permanent decision that the district court is making this is just a legal call a legal evidence sherry call in district courts make those all the time and i would say to your honor's point about allowing the government participate the government doesn't really have a lot to do here and carpenter the district court allowed it to rest and the government didn't read that they didn't participate in that here the government didn't read the proffer but had absolutely nothing to say no they didn't challenge it at all all they said is we want to be able to impeach him a trial later if it turns out that there's a difference so they relied on their adversarial trial rights nothing about pretrial adversarial process and if i could just make this last point your honor because i think it ties in the government said that if this reason is compelling enough government's or the public's reasoning and so any other defense if they came forward and sought to seal or proffer on the basis that it would reveal confidential defense strategy or of some automatic right to that the church group didn't object thing of