good morning may please the court benjamin daniels on behalf of alford pitino in this case a pro se defendant provided evidence of three misstatements and or missions in the wiretap affidavit against him the government has admitted to two of them and they were incendiary they suggested a far greater and sophisticated conspiracy than actually existed and cast doubt on the entire affidavit when that's coupled with the boilerplate statements that the government used to justify this most intrusive of searches and the ubiquity of wiretaps in the district of connecticut this shows that the wiretap affidavits were deficient and shows why the district court should have granted it franks hearing or in the alternative suppress the wiretap for a lack of necessity conspiracy and as we said it is false and the agent got the information from a pen register and he had used three phone calls from that pen register in order to deduce that that was call a call to tim hortons and in fact it was for a company called flexi there was elevates this from a normal street level drug conspiracy to a much more sophisticated and vast a drug conspiracy than would ordinarily be believed and i would suggest to the reviewing judge judge he in this case that this conspiracy necessitate much more than it actually did so that's why we believe that and wiretap suggesting a money laundering conspiracy in a drug conspiracy that such as this would be a kind of a unique situation and it was based on reckless i believe it's intercepted your honor in a different way i don't have the mechanics of how it precisely it's wiretap but i believe that they tap into the cell network and are able to capture the phone calls in that manner right and i just ask you a procedural question to both of us i want and one of the challenges of course is to the necessity right and there's no record of the original motion to suppress ruling but there is one of the reconsider and i didn't see anything in the reconsideration ruling dealing with necessity why is your honor it was raised to judge edgington but he did not address it and we believe that that was a defect in the court's opinion and primarily we believe that there was a defect because necessity is the preferred way that you have to overcome the statutory presumption against the issuance of wiretaps and that was the united states versus your dano the supreme court held that there was a presumption against wiretaps and in order to overcome that you have to show a specific need in this particular case and the reason for that rule the reason for that rule is that is to prevent the government from saying they need general allegations about classes of cases you can't say as the court and us versus robinson the d c circuit said you can't just say this is a drug conspiracy and it's inherently difficult to investigate well they did say they did have instances where they discussed things at great length however each of the particular investigative techniques that they needed to address your honor they get used in a lot of them they use boilerplate language that was repeated from other affidavits in the district of connecticut are routinely used well i agree in the summary order that's probably fine however there is a statute that requires a showing of specificity in this case and the court in the in this court in the united states versus lyla said that generic explanations for the failure to use a traditional investigative technique is not enough and that seven circuit and black men actually went through a similar situation that we have here and they had they said that informants had limited knowledge that's kind of the explanation that we have here they said cia's were drug that they couldn't you see eyes because drug dealers know just keep things secret that's what we have here registers don't id call us that's what we have here in the seventh circuit held that that was not enough to show necessity well we believe that they could they were using cooperating witnesses to a good extent and the only reason they felt that the cooperating witnesses were not good enough is because they couldn't undercut uncover the entire conspiracy or the whole conspiracy and that kind of language is not sufficient in this case because it didn't show particularly in this case why that would be true and that would be generic to every judge in investigation and furthermore going back to the franks issue this in this entire affidavit is infected with at least three misstatements or omissions that have cost doubt on this affidavit so when you couple those together you have a failure to grant frank's hearing in this case and a lack of necessity even on the face of the affidavit so for those reasons we ask that you reverse and remand either for a french hearing or with orders to suppress the wire to thank you or yes please green it says he'd be to remove it would be presumptively mandatory and the district court went over there and explained to me have to assume that he would be subject to that has that not adequately explaining it to the defendant well if the plea agreement can supersede a rule of in canvas then the government may have a stronger argument but i'm not sure that that it should be and i think that what was wrong about what judge meyer said to him i think what happened here is that i felt that the briefer misses over fetus in november of twenty six twenty sixteen in june of twenty seventeen the united states supreme court decided leave versus the united states which i know the course for millions with and it's it's our view that that that it helps our argument and it also changes it changes should change federal law as far as the plea campus goes when it's a federal narcotics drug trafficking offense and when it's a legal resident alien in other words i think i think that i think after the leak case and this isn't going to apply to a state court cases or steak or conviction to that's a whole other area and this this court's decision ok i think it should be it should say  this has your attorney told you that if you plead guilty to this federal narcotics trafficking crime deportation is mandatory and then ask the lawyer digit tell this was over plead guilty to this federal narcotics trafficking offense deportation is mandatory because that's what lisa it says deportation is manager it doesn't say you may be subject you and i think that  understand that your honor i think that should be changed i think after louis but that's that's not enough that that's i think that's that's that's the essence of my argument and i think that just like in a district court that the judge asked have you gone over the guidelines with your client yes you know the guidelines he may have advised you here she may have about that you may hear she may not be right the court should say you are s deportation is mandatory to do a lawyer tell you that if not i'm telling you that that deportations mandatory you enter this plea you've got to understand his deportation mandatory does that change your decision on whether you should plead a month that's what happened in the week case mr lee said he said he had a question he didn't understand then his lawyer told it was you know whatever you're not going to get deported so i think when you look at the totality of the facts if you look at my brief the situation here deportations mandatory right and then and then miss but i think he went on to say i'm going to have to deal with that if i ever face one of those if i ever if i ever have to face a proceeding i think that was well i wasn't there but i mean yes i think they're pretty sure here deported because you've been in this country for forty some years and you want all your life and you will for your family's here and i took that under consideration it was judgment has asked me no he didn't make it clear to me nobody did made it clear to me that i would be deported if i signed that guilty plea ok i want to make sure that this court has full knowledge of what i said i was misinformed i found out that i will be deported after i pleaded guilty and i went and i do some research inside the white detention facility and my inmates they told me look at this case you will be deported to not not he said yes you will and that's when i started getting furious and i went against frank reilly and knight and i wanted to withdraw my  court of connecticut after i was sentenced and and look at the three exhibits that i have a matter of fact in that back in that document i have a sworn nor arise affidavit by mr demetrius c petey's who c w number three under oath he's saying that he never wore a wire and got any circumstances nor did he have any knowledge that you will be recorded and you also asked me to tell this court and judge which i did that you want to be subpoenaed back to united states to testify under oath in support of his notarized sworn affidavit so what we have here we have recorded conversations that our government used as evidence done that is a phone conversation as tall analysis shows that twenty two seconds tall that was a phone call and over here she says it's a minute and it was short cut it to a ten second conversation would join my voice out to make it look as if it was a meeting conversation please also look at document number fourteen twelve which is a lab analysis by an expert telling in conclusion that so ok those things those two things court my name's finesse richards and i'm here to represent the government and the subpoena all through the course of a fairly extensive wiretap applications beginning in february and extending and through april the government as stablished that mr casino and mr zucker freydis were part of a large scale drug trafficking organization in the district of connecticut that they were using cellular phones in furtherance of that drug trafficking contrary to the statements made by my colleagues from the defense side this was not a street level common street level drug organization mr could tino and james demetrius doc ran this drug trafficking organization these two men had extensive criminal histories and federal convictions for drug trafficking they were sophisticated drug traffickers mr catena by his own admission is the last living member of the french connection he has spent more than half of his life in federal and french prisons for drug trafficking as a consequence of their extensive drug trafficking background they had a great deal of operational security they were aware of how the police intercepted phone they were aware of of of the rate at which those wiretap applications can happen that in fact is borne out by the simple history of mr katyn no changing phones virtually every thirty days and i believe that is in the wiretap applications this operational security is what limited the billet e of the investigation to  infiltrate the higher echelons of the organization to determine who the sources of supply were to this organization the sources of supply that were bringing in hundreds of grams of cocaine thousands of  from new york from florida from a state in between and additionally mr zucker foetuses efforts to ultimately try and negotiate a two hundred pound marijuana transfer from california to connecticut  in terms of necessity i want to say that the applications detailed a long term investigation up to that point the norwalk police department in connection with the drug enforcement administration had been investigating this operation for several months at the time that it was decided that a wiretap application would be appropriate they had exhausted the limits of their cooperating witnesses all of whom none of whom raised in a motion for reconsideration frankly after mr casino had pled guilty so mr teano pleads guilty then raises a motion to reconsider on this point that is the point at which the government said you know what you're on i think you should reopen this because we went to look for the transcript and we were told by the court reporter it didn't exist and so at that point the government essential was reiterating its arguments as it always has with respect really to the franks issue which was that even if you accept as true the a missions and the misrepresentations that counsel is alleging it doesn't defeat probable cause with respect to necessity your honor i know you raise the issue there was nothing nothing in the motion or rather in the decision to address necessity what i can say about that is i think that e i think just simply in light of the overwhelming case law on the subject case law which by the way was reiterated by this circuit as recently as thursday in the united states versus ten yuck that  where where the government has established that they have gone through pretty much every investigative step and can detail why it fails in this particular instance or why just as a matter of common sense it would fail such as transitioning a covert operation to an overt operation by notifying targets that the government has satisfied necessity and in light of the extensive nature of the affidavits i don't know that judg edgington felt the need frankly to to write on it so what i would say is that given the record which again all of these items are in the record all of mister motions are in the record your hono can look at them and determine for yourself whether or not judge hate abused his discretion in granting these wiretaps the government takes the position that he most definitely did not this was again a situation in which the government had tried pretty much every investigative means it could to get into this organization again at the upper echelons with respect to the franks issue what i will say is that while there were while there were errors in this these affidavits and the government owns those errors and takes responsibility for them none of them vitiate the probable cause in this case none of them none of them take away from the multiple controlled purchases that were made into this organization there were i believe eight or nine controlled purchases in total  dissin his coat codefendant john you're a ninety's they were never genuinely contest it in any way no one ever came forth and said oh those never happened those controlled purchases never happened rather there was an argument that was being presented that essentially more people engaged in those controlled purchases than were represented by the government and again i don't think that that vitiates the probable cause determination with respect deportation in light of his conviction i would know that judge meyer specifically addressed that issue in terms of determining that mrs aris had actually read and understood that plea agreement and that's it government's appendix thirty three through thirty four so not only to judge meyer go to great lengths to to talk to him in the colloquy about the fact that it was going to be presumed that this was going to happen and he should prepare himself for that agreement itself stated that in the exact explicit terms that mr karr wants it to be expressed and mr secretary this acknowledged that he had read that and understood it i will say additionally you know and make credibility determinations about what he understood and when he understood it he ended up on the record denying the motion now i'll grant you that's true your hon i don't think that he needs to i think that he can he can listen to would it have been better form potentially to have set forth that record short he didn't i don't think that that amounts to an abus case of the united states versus tang prior to that point i think there had been some question about it but i think in that case the several of your colleagues made the determination that abuse of discretion was  so with respect to that i will say i think that that's inappropriate i will say just in terms of articulating a reason for why that's an appropriate standard again it's really for the district court to make a determination about well does this do it do i feel like i need more information about this have we reached a threshold with respect to this issue and i think that judge is intended that in this case and research is terminations that he didn't need more information with respect to this us in a twenty two fifty five we would have that opportunity and so i think that is the most appropriate form for this to proceed and he's not certainly that your should you decide  to not grant his appeal on this issue he would not be precluded from raising that issue collaterally which again would be the more appropriate place to do that so your honors i i want to unless your honour's have additional questions just and the notion that while i think defense counsel has articulated at least a picture that this was government overreach in some way shape or form when you take a step back and you actually look at the facts and circumstances of this case and you actually look at what the government was attempting to accomplish and did accomplish in this case i think it's a questionable that there was no government overreach the government acted within the parameters of the fourth amendment in the wiretap act and acted appropriately additionally the government acted appropriately with respect to accepting the defendant plea and he was properly informed of the deportation implication of that plea by both the government and judge wire thank you honor not a problem thank you i would just like to correct the record on one point my colleague here said that mr casino didn't raise the necessity argument on his motion to reconsider and i just direct you to page j extent that the courts troubled by the fact that judge edgington didn't address the necessity requirement that is a troubling situation and you know we would suggest that you could be either decided on in the first instance here whether the judge has abused his discretion issuing the what they correct i was drawing a judge johnny's concern earlier that judge edgington didn't write an opinion addressing whether a judge had abused his discretion in issuing the wiretap there is a section in the affidavit that is titled necessity and we think it falls short for the reasons that articulated earlier using the generic boilerplate that's ubiquitous in the district as to the franks issue we think that there's a remand here for a couple of reasons but the primary thing is that the judge did not reject this for lack of materiality he rejected your night his affidavit because he said it was confusing and he wasn't sure what the testimony would be and there's a simple answer for that the simple solution to that when a pro se defendant presents an affidavit that you're unsure about what the test is to have the testimony in the court seemed to be going that direction before the government argued and in few look at the hearing transcripts that's the way that judge edgington was headed into explained mr your night is prevent her and provided him with the information about the cooperating witnesses which he incorporated into his motion so when read together with his motion that is what is is what mr your night is would have testified about and for those to the defendant person if you plead guilty to this deportation is mandatory so that's it thank you your honor may please the court i'm paul wagner i represent the city of ific and the city defendants which are a number of individual chiefs and other employees i was trial counsel at all three  as the arbitration which lasted seventeen days over the course of two and a half years and resulted in the arbitration award which you see in the record the two thousand and twelve retaliation verdict in this case is precisely what the u s supreme court warned would happen under a lesser standard for causation as justice kennedy wrote in nasser quote if respondent were to prevail in his arguments here that claim could be established by a less than causation standard all in order to prevent the undesired change in employment circumstances and that's the church correct at the time given the if it yeah yeah it was not inconsistent your honor with the prevailing law on the circuit there was some conflict the madam of vs jelly case which we cite in our brief seemed to suggest did not come right out and say that a but for causation standard would be appropriate retaliation cases but there was another law of the circuit which judge mcevoy our first district court judge relied upon to give that for that instruction and notably when you compare that instruction which i think in part he called at least in part because of protected activity we would argue that even fell below the substantial and motivating factor standard that this court has held to be plainly erroneous in the case which was a retroactive retroactive application of the nassar decision and we understand that our colleague on the on the plaintiff side has pointed out that that's not for and has always been and one more thing you're on a roll with all due respect and shall be applied retroactively on any case on direct appeal nasser came down between the first trial and the second trial we right and despite the lack of press the presidential effect in in the related sotto case this court has in fact done so with respect to nasser with respect to a very similar and even stronger frankly  i don't think so your honor and if i may explore that why not absolutely judgment as a matter of law and here's why if you read the arbitration award i don't suggest you haven't this isn't your typical labor arbitration that at a municipal level that might be a paragraph or even one where this is  fifty three page decision by by thomas maroney who heard over forty witnesses and made very specific findings of fact those findings of fact we argue render this case such that no reasonable jury in this circuit or anywhere in this country could find that the but for causation for the june one notice a discipline which obviously led to his terminations and produce the arbitration award was retaliation and if you look at tom erroneous findings in that arbitration award he found and by the way clear and convincing evidence on page you could never satisfy about four standard what are we to make of that that's a tough one because like a summary judgment decision it precisely yet then he goes on to grant a new trial on liability on the beach claim say there's no way this was the only book for cause because of the lead to the retaliation that there were other reasons too but that sounds like a summary judgment statement by the district court where we do the post trial motions it's entitle to collateral estoppel effect both the ultimate award and the factual findings of the arbitrator there was no question in the circuit under the federal arbitration act and by the way this arbitration award was never challenged by anyone the  he had engaged in perjury in the second degree by clear and convincing evidence standard there's a whole host of other factual findings in the arbitration ward including crediting the testimony of the three chiefs as to how they discovered his prior treachery the investigation that ensued and the decision to bring the june one two thousand and ten a no day so if i'm right if the city is correct those findings are entitled to collateral estoppel a fact no jury could find a reasonable jury could find that retaliation was but fo brain in our opening brief there's about i string site of about thirty two cases your honor that and i'm not aware of anything that that suggests otherwise now certainly if there were infirmities in the arbitration award york attorney general of state in new york and constitutional law professor at syracuse a very experienced labor arbitrator beyond those other legal credentials and judge sharp our second judge in second and third judge in the two trials after the first specifically noted on the record the completeness and that and the care given by arbitrator moroni in the decision and therefore he allowed it to be used very very sparingly which is also interesting that if this court were to remain and as opposed to grant granting summary judgment or judgment as a matter of walk we would hope that the court would also instruct judge sharp that those arbitration findings the ultimate award as well as the factual findings would be entitled to full collateral facts and should be submitted entirely to the jury in trial number four and i just ask about the beats july july and august of two thousand and nine thirteen beats are winners are tough but our summers are beautiful and ethical and these were to be this very officer miller had volunteered for sometimes for overtime and sometimes as a favor to another officer when the chiefs assign and him instructed him to go do the very beats that he had volunteered for in the summertime he said aha this is punishment this is retaliation it simply doesn't cross the brawling to northern standard and i think the kid the case of road us versus town of farmington which was appeal sorry affirmed by this court in two thousand and fourteen involving another municipal worker in very similar circumstances as instructive the the the change in assignments and schedule in that case that was found not to be adverse employment action under the burlington northern standard were actually much more a punitive subjectively to that plaintiff and the court said it doesn't matter the subjective view of why the superiors might have been assigning it the question is the reasonable person standard it was within his job description he got the same pay the same benefits the same schedule and this was a rotational speeds these weren't new beats these were the same beats that officers their police officers they got but that also is subjective your honor and it goes to the same point when my superiors assign it to me it's onerous but i volunteer for it for overtime that makes no sense it's pleasing to me in fact inviting that right and what's interesting from the first trial judge mcevoy similar to the june want to know de comments by johnny actually made the factual finding that these weren't sufficiently adverse under the brawling to northern standard but he but he but he ordered a new trial on liability those those two things are inconsistent so we think that this court can go all the way back to that order that post trial order and  was erroneous that he should have granted judgment as a matter of law in the post after the post and now it is true and this is a complicated sort of procedural morass it is true that if your honour's  granted retroactive application of nasser to vacate the retaliation verdict judgment as a matter of law as we've argued here and not remanding it for that then there is a retaliation verdict in damages award from the third trial that would stand if you did not disturb the that decision by the second jury and the third jury twenty thousand dollars that's on the beach solely on the beach reassignment and that was subject to a remitted or after the second trial for fifty thousand dollars the plaintiff rejected it and we went back that a whole nother trial for a week and a half and the jury came back with twenty pounds thank you eight ing transcript at twenty six o seven less just are a little leaven eighty six twelve thirty one seventeen all three given out as punishment that's trial transcript at fifteen eighty nine seventeen zero three through seventeen zero four eight hundred seventy six twenty ninety twenty ninety eight and numerous witnesses testified that the example that had been made out of plaintiff was such that no one wanted to be the next miller they were speaking fearful of speaking out associating or being seen to help him that's it the transcript of three sixty two three sixty three through three sixty six five seventy and so on there is ample evidence before the first jury that the beat assignments were adverse there is ample evidence that they were retaliatory now this retaliatory investigation that was conducted by the city of the thick of police department was not launched until after my client received his right to sue letter in february of two thousand and nine two thousand and ten the lawsuit was filed on may twentieth of two thousand and ten the notice of discipline was served and filed against my client on june first of two thousand and ten and and so the complaint had been filed before the notice of discipline was issued and with respect to the arbitration matter right in fact when judge mcevoy issued his post trial decision he relied on mccann and and if you read the last paragraph of that decision by the supreme court what they acknowledge is the danger that an employer will undertake an investigation an extensive investigation when they're brought to suit in order to acquire this after acquired evidence so that they could say well we would've anyway and that brings me to the point that mr wagner and the city of if the can all the defendants raise no mount healthy affirmative defense they didn't plead it they didn't argue it never know pricewaterhouse hopkins defense was pled i'm sorry the pricewaterhouse of the we would have made the same decision defense he didn't argue it he didn't plead it the mount healthy defense even though there was a section one nine hundred eighty three first amendment claim custom policy in practice claimed there was no mount healthy to prevent plug or argue or raised in the post trial motions what happened was is a judge mcevoy interpose that defense for the city and included it in his decision in which he made the finding that he was going and he made many factual findings if you look at his decision he made findings that among other things mister that the court finds that plaintiff engaged in sufficient misconduct such that the plaintiff would have been issued a notice of terminations regardless that was an issue before the jury he substituted his judgment for the jury he made a determination factually that the beats were not undesirable that they were subsists substantially similar that the he made findings of fact that mr miller intentionally omitted matters from his past employment application that was disputed at trial mister he also made a finding that mr miller was terminated from vinton fiercely fiercely disputed at trial before the jury he made a factual finding that my client was guilty of falsifying documents on the d w i a log a claim that he had removed from the plaintiff but then made a finding of fact in the post trial decision m judge mcevoy punished the plaintiff by vacating his emotional distress damages as excessive and finding in relying on unplugged same decision defense as a basis for denying the equitable relief and it wasn't until the reply to our application to have the notice of discipline withdrawn because now it's tainted the jury has found it was retaliatory and but for doesn't mean the only c but who are means that it was a causing a motivating factor essentially not i understand it gets well you're right your honor you can't you can't do that but the second trial applied the nasser charge so the beats claim during the second trial before the second jury they found but for mr miller's protected activity he would not have been subjected to this reassignment and no the second trial was liability on the beats assignments claim and a retrial see bifurcated it on the d m it is on the notice of terminations and the beats they separated it which again brings me back to the first verdict which mr wagner did not object to the verdict form or the charge combined to damages for retaliation section one thousand nine hundred one retaliation was not charged to the jury although it was plugged although it was argue we asked for that charge the judge had not included it even though he had told us that he would he said it was too late the section one nine hundred eighty one retaliation claim has the same standard with respect to the what the jury found that there was retaliation based upon protected conduct if the court here reinstates a section eight hundred eighty one retaliation claim nasser's not a problem but our position is that even if you apply nassar you still have to apply the standard a bow whether or not you would order a new trial and then you get into the application about whether there was clear error excuse me whether there was the force the four points under this section one nine hundred eighty one whether or not he was retaliated against for opposing discrimination so they the elements are the same and i believe that the standard is the same with the exception that under section  what i want you to do is reinstate the first jury verdict i think that that's the fair thing to do i think that that's what pervs preserves the public trust in the jar the jury system you know there was there was no affirmative defenses raised with respect to what was argued post trial and then and used by the district court there was plenty of evidence concerning the severe emotional distress medications  continence anxiety attacks post traumatic stress disorder there is plenty of medical evidence to support those awards the fact that the fact that the the court had used this substitution of their own judgment of the credibility of witnesses which is also in the decision i think it was overstepped and i don't think that was appropriate for the trial court to do thank you thank you very much you've got you you've reserved some that is true two important distinctions number one judge sharpe instructed the jury during the liability bifurcated stage that city had already been found to have retaliated in another instance against the same plaintiff we thought that was wrong more importantly the arbitration award was not usable the are the judge ruled that the arbitration award although entitled to the effect of a collateral  specifically relate to the beats and he was trying to cut close to the bone and keep it narrow no problem but the point being that if this case is retried on the june one and zero day retaliation claim our perspective is the whole thing comes in either by your honour's consideration on a on a summary judgment or judgment as a matter of law or on reason and another point my colleague gave a chronology of how things had such tempora proximity such that retaliation could be presumed judge mcevoy on summary judgment throughout the retaliation claim that the n o d was a response to the lawsuit being filed on may twentieth we proved  to his satisfaction that the chiefs did not know about the lawsuit because it wasn't served until they had already drafted the n o de that was also the same finding by the arbitrator in the arbitration finally this notion of a right to su letter in february everybody gets a right to sue letter that goes to the e e o c the more dispositive date is the last human rights complaint was filed a year prior to the n o d and after it was filed miller was severely disciplined for intentionally falsifying a stop d w i log so much so that the district attorney sent a letter to the police department it's in the record saying i will not use him as a in any active prosecution or future prosecution because of problems with his credibility so here's a police department frustrated that we they've got a serial liar on their hands they discover that he lied to get his job ten years prior in the first place all happening after he had filed his last of four count em for human rights complaints over a period of three and a half years why did they retaliate against him in two thousand and ten when he had been doing this since two thousand and six and they kept going through the process and defending themselves and those were hit were found to not be credible last point the weber versus city of new york case that we save in our brief one seventy three to two seventh's judge brody from the eastern district it's a very on point decision with regard to this court's ability to grant summary judgment or judgment as a matter of law under the nasser spot for standard that's obviously in a district court setting at summary judgment but judge brody applied the nassar standard and then juxtaposed it to a hearing officers determination under the new york state education law that found that the plaintiff in that case had engaged in unprofessional conduct poor performance and poor judgment didn't agree with the city's request to terminate only gave a sixty day suspension but judge brody said no reasonable jury could find that retaliation with much greater temporal proximity is whether or not there was error whether the error was clear and obvious meaning there would be no reasonable dispute the error affected substantial rights meaning there is reasonable probability affected the outcome and that the error substantially  seriously affects the fairness integrity or public perception of judicial proceedings the first time that the defendants have argued that they get a new trial has been based on the court's rulings allowing evidence of disparate treatment has been in this appeal and with respect to the mccann insight that i spoke of earlier the concern that employers might undertake extensive background into an extensive discovery into the employee's background to resist claims it's not insubstantial it's not insubstantial and that's exactly what happened here there was nothing about anything about this man's application for employment until after he had received his right to sue letter he had made these complaints he had then then there is the recording from may seventh of two thousand and ten that he has the meeting and they specifically raise his division of human rights complaints and they say will take whatever action you need to get gone you need to leave and the with respect to the first amendment claim that was first that was dismissed the standard under conic and that is matter of public concern if it can be fairly considered as relating to any matter of political social or other concern you look at the content the form and the context of verses ro and that is as it is revealed by the whole record this no question that this is an important public issue with respect to discrimination on the basis of race within the city of ithaca police department in so little code the trial court was found to have overstepped the bounds and usurped the jury's function by judging credibility that's what happened here as justice marshall has said in mcdonald versus santa fe trail misconduct may be a basis for this charge but it is not a basis to discriminate or retaliate there's been three juries actually four if you count the bifurcated trial that have made a finding that my client was subjected to retaliation on the basis of protected activity despite the of vitriol as submitted by mr wagner calling my client a liar three juries found that he was not and i was i would suggest that their opinion is far more controlling than that of defense counsel thank you your honors thank you both thank you both will reserve decision and get you a determination in due course the court counsel for the government my name is as a spill coffee and i'm representing the appellant anthony rodriguez who is before this court challenging his sentence of one hundred eight months because it was based on an erroneous finding that he committed the offense in connection with another crime namely attempted murder based only on what the district court observed in a surveillance video the court found that yes the crime is charging as pled guilty to was one twenty two g one felon in possession of ammunition yes well i agree with your honor and i believe that the bronx district attorney is the proper venue for such a question mister rodriguez is basically being punished without the complete process of a trial and without being charged  first notice that mr rodriguez got that he was going to be that he might be punished that he faced punishment for attempted murder was in the government's  soley on video footage which captured without any sound the appellant firing a weapon now there's no dispute that he fired a weapon there's no dispute that he brought the weapon to the  i guess standard of review is the phrase i want one we review what it is that judge nathan determined and it seems to me she laid out on a couple of pages of transcripts i won't read them to you but how she reached the determination that she reached no your honor we we argue that he did novo standard holds here and the government does she made a determination as a matter of law that this set of undisputed facts that's right your honor instituted adequate proof of a mental state that would support attempted first degree murder that's correct your honor and  spoken in that regard it could have just relied on a transcript of of the interaction between the suspect and the police officers rather the district court and then later on this court  noted in observed what the demeanor was and what behavior what the tenor of the conversation was it was not there was not just the firing of four shots he was waiting for the car coming down the street  from the shots were shots at the windshield calmly walked away got on his cell phone met up with a friend and went into an apartment building as that sounds like it wasn't something where he was surprised or he reacted to violence directed at him how can you not draw an inference that it was premeditated intent to kill under the circumstances well your honor we don't dispute that well rather there is no we made no effort to show any justification that this was that the shooting was done in the in the heat of passion or some or something like that that there was any legal justification for it rather we just simply can't tell and  what well your honor that what the intent was what the specific intent was now but that for instance the district court viewed the video and saw someone acting calmly i saw someone  acting who is full of adrenaline and sort of pumped up i didn't see someone who was who was who could just go in at the very next moment and have a conversation with his mother let's say  so we also have very different things from the same video evidence all right we saw there for and things and therefore we each have a different view of what the facts are and therefore why don't we leave it to the district court to make a factual determination which we then review for clear or because it's a the district court came to an ultimate legal conclusion on  e mental state and the facts or the as in hoc we have the exact same this court has the exact same material to look at as the of the legal conclusion as to the mental state is still a that the government sites in that the district court cited had other evidence to to show a specific intent to kill there's no other