is enough development if the court wanted to do so to basically evaluate the materiality of this undisclosed are why our view of course is that this is very discreet issue one time  guy so there's enough there for the course and it is not material so the court could certainly do so but the court could also leave that open because there will be an additional appeal by that it should almost certainly after entering a final judgment and the court  take that issue then yes i don't know what was it what gets frustrating is the idea that we resolve something in front of us it goes back and then we have a brady clane and district court is saying what seem to be opposite things on the one hand this evidence supports what it did but on the other hand it doesn't independently support try i don't know how that i don't get that i mean that if the court thinks it's relevant to the new trial motion i don't understand how we're not supposed to review the whole thing at once you don't you don't review new trial motions over and over again that's not how this ringback works so i'm stuck with why we're not sending it back and if the court just wants to say i think there's a pretty violation it it adds a little bit to my trial decision great let me review that but i'd say it's very frustrating to  the trial decision and then have this live brady issue and stand that well i certainly share the court's frustration in the sense that we've tried a few different times trying to limit the number of times this case comes before the  deciding whether there was a great violation but accounting for that happens in deciding whether a new trial grants motherboards were not the words for the sake of argument we would assume this was a violation without saying it was were ruled in your favor that is no new trial then it would go back to the judge and you could take into account this brady argument would that be based on another new trial motion or did you mean it would be the subject of a b s i think it was i think your honor it would be potentially the subject of a new truck motion you know burke's when he moved in the district court for a new trial he moved as to counts one and two not as to the this court adopted a reading of her testimony that had not been presented to the jury in which she purportedly identified some alternate perpetrator other than research namely this meeting had a person she saw standing over hopeful that this alleged confession didn't match any of the objective s act talking about how scary and dangerous it was there and what were says to dally hardison and and dark is i can't believe you need all the way out there i shot him in the head and made it all the way there mentioned or argued to them or pointed out to them yesterday and so you know that the district court's view that even though it's true that maurice burke's could have embellished the e tail of the shooting by saying a shot in the head when he really shot in the stomach that's no different from his fossicking credit for her didn't commit i think it's important to understand that against the backdrop of all the testimony given it in context for how the games are cycles operate and most importantly a person gain status within the game by murdering arrive again and so it's completely implausible that research would would conference call between myself and two government attorneys on this case where we discussed the possibility of a rematch and and at that time i asked one of the  attorneys representing the government if it was their position that this new evidence disclosed brady material would in fact cause the district court to reverse its decision granting mr burke's a new trial on the murder counts and the attorney for the government said no that wasn't their position at all they thought that if anything it strengthened the district court's a new trial given that i didn't see any reason that it was necessary to send the case back to the district court to consider that new evidence now i understand they get the same day well i understand that it would give perhaps the district court an opportunity to further clarify and further expound upon its reason granting a new trial on the murder counts in this case and maybe that's desirable and if that's so that that's fine i guess our position was that just record wrote a very thorough and thoughtful opinion and partially granting mr parks a new trial motion and that was only going to get stronger given the government's failure to provide writing material on an important issue the trial regarding its main witness a witness that it kept on the stand for three days during this trial so i will say i do take issue something the government argued that the district court found that the that the failure to provide the brady information regarding allen's testimony was not an independent reason to grant the motion for a new trial on the murder count that wasn't the question before the district court and our nd motion for new trial the district court did rule that it was not an independent basis for granting a new trial on counts one and two the drug trafficking counts which obviously remain in effect to this day so i don't think that the court and any way said that it would not find that that withholding of that information was not a further reason to grant the motion for new trial on the murder count i think it said that it or further supported the court's reasons are already expounded upon and it's a very detailed opinion in order grant partially granted was what's your reaction to the point i raised to the government that in considering whether the new trial has been granted we would be allowed to consider the evidence underlined of alleged brady violation in a suit for the sake of well i agree with the government that the court has before it enough evidence that it can make that determination i don't know that that's an evident squarely presented so far and i don't i don't think it's been argued it certainly hasn't been thoroughly argued one way or another for example if there's a question about whether it was a brady violation obviously our position is that there's no question at all it was right a violation and a very serious why i'm unusual circumstance and you know i don't know what it is the judges know the jurors don't know when it comes to assessing whether the grand jury testimony should be illegal in that setting well the judge obviously consider not only what ronnie daniel said but how he said it and ronnie daniels came into court and did not want to be there did not to answer any questions was overtly hostile to anyone asking him questions and was held in contempt and came back and even after that did not substantively answer any questions only said i don't know i don't remember now he did say and response to a question on cross examination just because something is and a grand jury transcript doesn't mean it's true and he very emphatically said no it does not  so he effectively disavowed his grand jury testimony and that statement i think that the district court had the opportunity to fully consider not only what mr daniel said but how he said it and found him very specifically found him to lack all credibility now the government argues that the fact that mr daniels has since trial it made it to committing perjury somehow home or says testimony  i don't understand that he said met at apparently that he doesn't mind lying under oath and i don't see how that bolsters either his testimony at trial or his testimony before the grand jury know the jury that before them also didn't it in the sense that the cross examination question you just gave would d tell any reasonable person this guy does lawyer on occasion right and when he said you know just because you said it in the grand jury doesn't mean it's true is a pretty good admission of line isn't it well he admitted that he lied and he has  hauled and the trial judge took all that into consideration how the jury has made believe to do that also didn't it that it's you know that the defense the defense question is always are you lying now or were you lying then and a lot better position to make the judgment than the jury was the judge said through hundreds of trials and as her testimony and has observed witnesses and has much more experience with that than any juror on any trial and the rule thirty three dollars interest of justice standard does not mean that because it cannot main just rubber stamping a jury's verdict if that were true there would be no reason for rule thirty three  understand that this court has repeatedly said that it's only to be granted an extraordinary circumstances the district court recognized that standard cited that standard and utilize that standard the government wants to say and they did say repeatedly that the discrepancies in the government's case were i think the words that used over and over were routine and unremarkable that use those two phrases over and over that district court didn't agree with that the district court observed the witnesses and the district court and not the government not acting as an advocate considered that testimony and found it not credible that tell me how at this point let's pretend there's just no other witness just grand jury testimony it's when were you lying or not i just would have thought that by itself was problematic i forget everything else i just would have thought as someone said in grand jury testimony under inherently incredible that government didn't argue it more than a half a nd at trial and they barely spilled any and got it in the pleadings before this court i mean their case rises or falls on daniel gallon i mean ro daniels they're raising as a legal issue about his grand jury testimony but his testimony didn't get the government where it wanted to go and this trial didn't even come close to doing that even if he had testified word for word didn't see outside of see your eyes that night and most importantly he didn't see anything and see right he didn't go inside to see race you didn't see you malcolm right being shot he has no idea what happened in but did he talk to bert's he claimed in the grand jury that he talked to barks i don't know that he agreed that he did that when he testified at trial he said he didn't remember but i'm just making  great and then they were waiting for it and then birds came out according to ronnie daniels a number of gangster disciples went inside of c rays and he has no idea what happened inside see rays that night a doll who doesn't know what happened inside see raises christine gaskins and with all due respect to government counsel saying that she didn't identify the person who shot her her boyfriend malcolm wright is a very strange view of the evidence she was asked specifically by the government at trial who was in the room three five person christine gaston's and malcolm wright was there anybody else in the room no just the three of you yes and that's when the gunshot went off yes christine gaskins didn't see the gun being shot maybe it was because the shooter body blocked her from seeing that and she was very honest she didn't say she sells something that she didn't see but this wasn't the kennedy assassination so your rights doesn't have a grassy knoll i mean these three people were the only three people in the room nobody else could have shot malcolm right it wasn't pristine gaskins album right didn't shoot himself this person shot malcolm right and this person was not maurice sparks there's no doubt about that court because they had the opportunity to listen to and view the witnesses i thank this court for specter and deference to the trial court's decision particularly because it was such a very thorough opinion and went over and meticulous detail the evidence that was presented by the government and what was wrong with the evidence that was presented by the government  is a new trial or there are complications with the new trial without the other defendant still on the case or does that are you going to say that makes it easy makes it much easier i mean there were five young african american men who were sitting against the back wall of the courtroom during this trial and the jury heard tons and tons and tons of evidence about one of the co defendants in this case marcus darden and also her tons of evidence about a defendant who wasn't on trial brandon hardison who committed a brutal horrible double murder i heard days of testimony about that yeah your red than enough to stay the jury's verdict here and neither the district court more works has really ever pointed out any discrepancies and possibilities of holes  simply say that the judge can't be a super juror d and decide that people are lying when the jury decides they did d not are there other grounds that the judge could use other than simply his perception yes and what what is your take on the only three people in the room gaskins evidence and i presume you argued something to the jury against that well that that argument was never made to the jury you know if christine gaskins testimony had been what burke now says that it is that she identified as also a perpetrator i think you could safely assume that that would have been front and center of the defense mission but everyone took it at trial that what she said was