thank you your honor sorry your honour's good morning your honour's this appeal is about with the government is required under eighteen u s c thirty five hundred to make a good faith effort to obtain statements of a witness that it calls at trial in the that the government knows are in the witnesses possession that the government knows relate to the subject matter of the witness's testimony whether the government is required to turn those disagree i mean i agree it did not have possession it technically and actually it technically did not have possession and did not have the absolute right under contract to get those documents and it didn't have constructive possession look for material which might kill your no no but the government has a duty to ask a witness that it knows that it prepares that it knows created member interview memoranda be favorable to you i don't think so i don't think something the difference here we know the government knows of its statements were made but it doesn't go with those statements are favorable to  your material gettable under attorney client privilege any number of things where do we get to do he the government to go and look for things for you well i think it's not a matter of a duty to look for things for me it's for defense counsel it's a matter to take it to act in good faith and i think that the government in this particular case this is a this is a unique case and it is a unique set of facts in most of the cases where the government did not where there is a challenge to the government having to go out and get statements of witnesses that are not in its possession the government there's always the court always says well generally deny it saying it was not in the government's possession in the government wasn't aware of them here the government was aware that this witness who the guy who the government called it was an attorney for the company i'm sympathetic in the way i think the u s attorneys work for the department of justice not the department of public prosecutions and that means say that they should do that and take that into account is very different from our saying that if in a particular case they haven't done that that amounts to a br that much i agree i think that it goes further it's not a brady violation because we don't know what was in the materials but i do think it's a jenks act violation and it's a potential giglio violation because i can tell i can tell counsel we're where they were a unindicted coconspirator was the company's c e o and the government and wasn't prosecuted and was actually promoted i can say i think i could have done some pretty good impeachment cross examination of the outside counsel witness unfortunately and i don't i don't unfortunately defense or didn't do that but i think that the government has an obligation in these situations just as a matter of good faith to say look we know that you created these memoranda we know these memoranda are your statements and therefore under jenks can you give it to us so we can turn it over to the feds so frustrated really you would need to show prejudice what you proposed to do that well i would show prejudice because right here we have i mean just just one area of prejudice that we have is that the internal investigation was of the same conduct at issue in the prosecution the c the person at who at the time of the conduct was the general counsel of the company mr myside mr massada was was not prosecuted by the government and was subsequently by the time of the trial promoted to it to the company's c e o in such a situation it would have been i think that there would have been you know material within the attorney's memoranda that would have let me would it well allow me to cross examine the witness as to why did you not interview mr assad which would have been telling in that case or how did you interview mr assad because part of the cross examination of my client was going to how they treated him during the interview whether they gave him lunch whether he they sat him whether he was sitting down for too long whether they were fact of class absolutely and there could be much much more they're also the government  an interview memoranda of mr myside i could have used those statements under rule eight o six to undermine mr assad's credibility and so those i mean this this is a very unique case i'm not asking the court to go well beyond what's out there but this is a unique case where the government knows about statements of a witness that he called and that i don't believe are protected by the attorney client privilege thank you i'm an assistant u s attorney in the southern district of new york and i represent the united states in this appeal as i did in the district court now it was interesting it actually turns out mr kreitman and i agree on a lot about this case  we agree that the government never possessed the putative materials that are at issue either actually or constructively there is one thing i need to correct there is no record in this case that those materials actually exist he keeps saying the government knows that these things exist it should have asked for them there is no evidence in the record that us p and its council interviewed massada as part of its internal investigation we don't know one way or the other so that  disagreement and that that needs to be corrected in the record so another point that mr kreitman and i agree on is that the government should act in good faith however the evidence here is repl with it's full of the government's good faith so the reason that the government did not ask us p whether it had interviewed matt massada and if so to produce those materials is that it was respecting the attorney client privilege of  of interviews of two individuals mr lee's and the governments may cooperate or mr selo u s p voluntarily produced those and it explicitly stated that it's waiver was limited to those two interviews now  so again the government did not ask you have p four a broader waiver in keeping with department of justice policy in the philip memo the philip memo which by the way was was passed in response to this court's concerns about government interference with corporate right to counsel and so the government was acting in good faith in that respect another way in which the government was acting in good faith is that the government informed mr lee's trial counsel that privilege with respect to the rest of its investigation mr lee's counsel could have at that point subpoenaed you have p and litigated the privilege issue before judge keris however this defense counsel chose not to another way in which defense counsel could obtained the material is by subpoenaing mr massada himself and in fact defense counsel did subpoena mr assad ultimately however defense counsel chose not to call mr massage as a witness there's nothing in the record that explains why that was but the sequence shows your honor that the government was acting in good faith and at bottom what you have here is that brady giglio and the jencks act there are about the unfairness at trial if the government suppresses or withhold information in its possession they are not free standing there next free standing rights of defendants to demand that the government act in a particular way or conduct its investigation in a particular way or honor as as judge as your honor just carney alluded to there's nothing material about even the theoretical existence of whatever might have been in these memos if they existed so the defense claim here is that the material might have helped him cross examine outside counsel who testified at trial it might have given him a more effective cross examination of that witness however the defense at trial was able to make those points through his cross examination of of the outside counsel he made points about whether the interview was unfair whether mr lee's was being treated unfairly at the interview he made those arguments in his summation and apart from that mr toward was not the central witness at this trial he was not the central evidence of this at this trial any potential massada interview would leave completely under stirred the testimony of the government's main cooperator kevin to selo he's the one who said mr lee's approved of the shady deal in this case any potential additional cross examination of us peace outside counsel would have had nothing to do with that also there was substantial documentary evidence in this case there were e mails between mr lee's the defendant and mr selo as well as with other individuals detailing mr lee's involvement in various parts of the scheme again all of that would have been completely understood by additional  cross examination of peace outside counsel so so with all of that your honor this is this argument suffers from again numerous defects there's no evidence in the record that these documents exist the government never possessed them actually the government never possessed them constructively they would have gone to what is essentially an irrelevant or a cumulative issue in terms of the cross examination of you  counsel and they were not material in the case there is no reasonable probability that the verdict would have been different here now your honor the defense also raised two other issues the admissibility of certain e mails under the coconspirator exception as well as certain challenges to the reasonable results of a sentence we've addressed those issues at length in our briefs and so unless the court has any other questions the government is happy to to rest on those briefs thank informative to the defense and material because if the if as i've said before if mr mr de wardes the entire purpose of his testimony was to discuss how my client was a and move for and dishonest during the interview and it would have been interesting to have seen whether the company either interviewed its general counsel who the government labeled as a coconspirator  who basically was later promoted to c e o which which in that sense also it's quite hard to understand how the government would not pursue statements or at least information relating to mr was from a public company why was the general counsel of a public company who the government labeled as a coconspirator and in order to get in statements or going to e mails that were damaging to my client ultimately behind it except we see it happen all the time and didn't judge her as after all giving your client a sentence which is way below the guidelines kind of probably took into account exactly the fact that some people were in charge who were coconspirators and some people got the lower sentences because they cooperated or bay pled but acted as a good district judge would did such a situation i would agree with that except for the point about the fact that the main leader and organizer of the scheme the person who stood to benefit a person who had a prior conviction who planned basically on the eve of trial did not cooperate with the government but yes but it you know i have long long been troubled by the fact that people get off more easily than people who don't and it's something that is a troubling part of our criminal law system but it is if it is that that we do it all the time i mean you you see that about my my irritation with that although i will admit to being irritated by that thank you your honors thank you will love preserve