characterized the video out takes of america's most wanted interviews with two government employees as a big nothing but the court committed an error both in fact and law when it nevertheless released that information in the last order that it issued after nineteen months had passed in the case and what is significant is what happened during that one thousand months and what happened is really what i think will should control in should land understanding to the court as to why it's not relevant to mr lens defense and in fact the judge white was correct when he said it's a big nothing what happened was when judge white looked at when judge white issued his order in two thousand and four he did so without having reviewed the outtakes they had not been before him they had not been before a magistrate judge trumbull he had a footnote in his order in which he invited america's most wanted to submit them to him in camera if there was any issue as to their confidentiality we took him up on that invitation and we submitted them but before we did we filed an x party application asking for permission and we asked the court to consider both their relevance as well as the confidentiality because some of the information was submitted and given to america's most wanted with an expectation of confidentiality the court responded to that it issued an order saying that the only issue before it was as to the privilege not as to whether or not it was relevant actually a magistrate judge in trouble had a seven special briefing on this issue as to whether or not there should be more latitude as to what is it miscible at this stage because the thing that face the death penalty let me ask you a procedur question in this case you submitted it especially at the judge's imitation but you followed up on that and submitted the material on camera what first of all do you think that's the proper procedure to be followed in criminal cases where there may or may not be relevant information i think it's the proper procedure where reporters privileged to serve it in the case and it is noticeable obvious procedure what is the duty of the court and examining those that material in your view in our view and we specifically ask that the court review that material both for relevance and for the existence of the privilege let's assume that the court has found relevant material what would be your position on that in terms disclosure the question would still be whether or not the balancing test under show and applied by a magistrate judge trumbull and judge white was satisfied so in the abstract it would be hard to say but l example that the outtakes showed one of the investigating officers saying well we really just trumped up this whole case that that admission on tape which should be obviously highly relevant to criminal trial i gather your position would  be balancing you might say well that's something that can be disclosed because in and the balance of interest that goes on the other side of the scales will that be your position that would be evidence of exoneration which is far far apart from what we have in this case right  i believe that the question would still be with respect to seventeen seeing whether or not on a pretrial basis they were entitled to get that now if the defense knew for or had a reason to believe  correct and and to be very clear that does not exist in this case and we have seen theory after theory after theory march past the courts in this case from jury prejudice misconduct to the death penalty now mooted to the most recent one is that to the extent that the outtakes show any inconsistency is with respect to the government error that's an abuse of discretion and reversible error under fields and that's what we have here we have essentially a fishing expedition under rule seventeen c which is not allowed notwithstanding the even more rigorous standard under the it's two people one of the former prosecutor correct one is a former investigator current investigator ern investigator correct so the person who worked up the case the case agent on the case no actually it is and this is actually very key again as to the change in circumstances here the judge white's order did not take into appreciation but in fact this comment about the quantum of the evidence did if you remember at the time of the order before the outtakes are reviewed by judge white mr luzhin is facing a theory and death penalty and a theory that built the bomb that theory change all i asked you counsel was whether the agent was the case agent was not the case agent and i apologize your honor i would like that how would you describe this person this is a person this is an agent who worked on the case this is the person who will i believe testify at trial care because the privilege belongs to i remember why should you asserted in this particular case the material that the government has already through brady and other obligations given to the defendant argument is that your clients are that the defendant through brady other disclosures along the way of the criminal prosecution  the professional prosecution or adequate defense of a serious criminal case is better than the parties i think it is not their judgment i think in any case as here it is the court's judgment and the only substantive judgement you have on this is judge white's comment to the defense counsel that it is a big nothing but you the gossip and i deny that states of america which correct well i will let them speak for it their position is that seventeen c has not in any event your client thinks that your judgment is about whether it's necessary for the fans is better than these people who are responsible for defending someone because can i finish guess who's life and freedom is on the line i don't mean to be flip but i am not your honor when i say that in cases involving the reporter and the more rigorous first amendment test is satisfied and that that is done in every case and it's not meant to cast judgment on anyone it is meant to protect the corresponding first amendment protections that apply in that case  in every other case is not the point of the camera inspection it is and i'll though i don't think you would advocate i don't think you've taken a position advocate and cameron's fashion if we were to adopt that as part of the procedure that would at if i could i have a minute remaining if i could say that for about a thank you for your may please the court my name is daniel blanc and i represent david lee and he is the defendant affably in this case your honors there are two issues that were raised by my opponent a seventeen see issue in a reporter's privilege issue i respectfully submit that in light of the disclosure that they have made to us into the government of the transcripts of the matter at issue there is no longer alive seventeen see the claim and in fact their appeal has to either stand or fall just on the reporter's privilege and what evidence do you plan well i know that the government is calling stephanie smith a case agent as a witness and so i intend i'm talk when i'm going away and i intend to impeach or if there is some basis to do so and i would like to do so if she says anything different in the premature but once miss smith testifies the government is under an independent obligation to provide it to me we do agree that you have no information no solid information prior to filing the subpoena that something was dry prosecution has changed and so i think it's likely that there were statements that were made by she acting u s attorney and or the case agent that are different than the theory that we presented at trial and to the extent that the well they were not provided to me in the manner in which i was free to peruse them in detail and the relevant government parties have not told me either what they were said but the government has said and i just want to correct the record in terms of what was  before that they would give it to me if they had it they said that on the record in the district court so it's not a question of that you know the that they wouldn't or they couldn't if they had it they would give it to me i'm not you me you have very intelligent or if you read something like that i'm sure you fix what were the main points well i think i would be more than main points and more just to know what it is than an in order to determine whether and how to use it at trial it was so conscientious a single no i didn't make notes there was a copy that was made i destroyed the copy i put in empathy but i do take the obligations that you understood for it to very seriously and although there may be some ethical obligations and by the way the whole of the california supreme court stated was entirely and that's to maintain this at least for now i also have constitutional and ethical obligations to use them on behalf of my client so there are very practical considerations that would govern this and that's why the whole privilege issue is the only thing that's really relevant here well let's let's assume with america most wanted as about criminals if we say it's just fine for you to use the seventeen rule seventeen subpoena to get this my turn on this case without any any suspicion any any proof that there's anything going on there that's going to be routine as well why isn't it routine wouldn't be routine for in fact i think people defense counsel be remiss if they didn't make a rule seventeen motion actually sought and the balancing that was required occurred when the magistrate just trumbull and then judge white twice affirmed it in its limited format just the speech of the government itself and i think that's worth recognizing too is  speech that we're talking about is official government speech by the parties in charge about an active criminal investigation this isn't some case we're trying to protect whistleblower who's either the source  of the information or the statements confidential this is something that's just out there government speech there's really no first amendment interest that can be identified in protecting this so there are three different ways what's wrong with having a judge look at it and i think the holding that the court reached which that is less relevant if he was holding was it was not relevant if that was a big nothing then he could not give it to me he would not say that i'm entitled to it so i think the big nothing really is an offhand remark it reach that there's no reason why this court has to decide that tricky issue because we have it and there is they don't have to respond to the subpoena we've already got it so the only thing that would keep me from opening the envelope and engaging with it in the way the privilege the second is of course the universe disclosure that they may have waived any privilege that they might have had by their inadvertent disclosure i filed a motion to dismiss the court didn't invite more argument and that's i'm not going to spend a lot of time on that but i want to make sure the  routine practice to have my secretary make a copy and have the original separately so if i take notes on it then i'm not making messing up the original for whatever reason and i think it was because the s t s also fa everything that i needed to me and i started working out the facts copies i didn't go to the copies that my secretary had made but when i got a call from counsel saying he believed they have been disclosed i went and lo and behold there was an original and remedy a trial and there's a reason there's a difference i mean if you can get a trial subpoena pretrial the rules will provide for that and you're saying well don't worry about it we can we can get this later so therefore we should we should is never appropriate it would have been one sentence on the site and that's not what they did i think in some cases impeachment material is appropriate the two cases that i cited are factually very very similar they both dealt with outtakes from television shows and in both and one of them at least i think the other one was unclear but one of them was a pretrial subpoena and it was all approved that was the case so i think it's a it's a much more factual based analysis then and your honor was suggesting know i would know because i haven't seen the government's case and what my defense is going to be a defense is by its nature reactive and i have to know what they're going to say maybe they will present the case in a way in which i won't need it but there's an important issue that i also want to raise which is that the judges are just like is already granted my motion to admit certain evidence regarding the quality of the investigation in this case the person who made the after being interviewed nine times by the police he's now in venezuela outside the reach of extradition and it was after he fled that my client was arrested and i have numerous as you can imagine criticisms about the quality of the investigation so even if that were not apparent on its face you know a statement by the case agent or the acting u s attorney why that would be important to me in my defense there may be something that's a little more subtle that i nevertheless need because the quality that's a geisha and is it issue that's going to be raised to trial transcript and it is and we would expect a ruling from your honour's but short of that i think i will have to use that and as necessary a trial i had a motion to dismiss it wasn't ruled on that would resolve the issue more no one relied upon that information and most importantly that includes the government so there's no jenks obligation they don't know whether it says anything for them or not that's frankly a red herring the issue is whether or not they relied on it and they changed their position as a result of it and they have not and there's also a court order those were given to the courts specifically with a court order pursuant to a court order and as this court considers this issue on the dismissal but as it relates to the appeal itself it must consider not only the precautions that were taken the circumstances under which the disclosure took place but most importantly even when we were in the ninth circuit in this case arguing telephonically before the discovery the motions panel it was not known at that time no one relied on it no one relied on it for purposes of this briefing it is a situation where the the harm should not come why isn't official speech different particularly in the context of a criminal investigation whether the government is under obligations to provide all states why isn't that a speech by an investigator or speech generically by investigators or those associated with the investigation made to you different from other speech used in your program my time is expired mayor answers that are the difference is that the brady obligation solves any concerns about the whether or not information is being withheld it doesn't change the fact that it is still unpublished information and the importance of that is set forth on page forty one and forty two there is a quote that is that explains the invidious nature of seeking unpublished know what you're doing in there on your hands and you may be very embarrassed that you did it and i am your honor in particular though the question at this stage has to be if if that was captured and it was within what happened afterwards what is really material is that there was no reliance on anybody's part on this and and if there wasn't any reliance there wasn't a change of a position and mr blank has made that very clear there really is there is change from having having received it and having received a call from me saying you received something that you shouldn't please contain it do not read it which is exactly what is presented to you here ok thank you thank you for the argument with the united states like to comment america's most wanted that the rule seventeen subpoena issue that that's the basis of the reversal here because we do not think that on this record the district court at the time that they he ruled have a sufficient basis under nixon  apparently hit it had been sent federal express to the san jose office to the trial attorney and he did not review the material per se because we had received a fax of the declaration so he didn't realize there was additional material which were the transcripts attached mr shapiro has a name which alerted me to the fact that i may have the transcripts of the outtakes i looked at the bottom of the sheet and he did in fact describe that this was material that was not supposed to be disclosed to the defense closed the package talked to the paralegal about how she