good morning arse may please the court jennifer cohen on behalf of defendant appellant this is killers or junior this case once dismissal because as a result of both the government's outrageous misconduct and its link the pre indictment delay especially considered in combination with the script the discrepancies in the evidence the trial casts serious doubt on the reliability of the evidence and the integrity of both the government's investigation and the resulting conviction turning first to the claim of outrageous government misconduct i'd like to start by acknowledging that the standard for dismissal on this ground is high and that reversal on appeal on these grounds are rare but nevertheless each case must be considered on its own facts and under the unique circumstances here lying to the police officers about that she was but nevertheless i would submit that her misconduct was attributable to the government because there were so many red flags and such a lack of supervision of her contact by the government she testified that the f b i was informed of her drug addiction and that in fact she had asked the f b i for help getting away from that sensation difficult situations where you have to me judgments about how to care of the functions you know the safety and so on and we you know we don't find be so i think that's why it's important to also look at the other factors at play here which were the lengthy delay and indicting the case and then the important discrepancies that came out a i mean just afraid they don't have them doesn't mean that they would have helped what was to persuade the court that while this is a very important stuff that what the story that they were supposed to have support all through school and we have an informant who is an extensive communication with him over a long period of time the government is not monitoring those communications it's not asking any questions about the relationship and then when we're at trial we learned that there's a possibility that there was an unauthorized stop on the way back from the transaction to the agents there was informants holly in the government that she had a discussion asked her to photograph the drugs and she declined which was not captured by the recording there was a informant testimony that she turned over a stuffed animal that was supposed to be used to carry the drugs to the agents when as they say no such stuffed animals found and we have a green agent who's basically on her first ad on the job stating that she didn't document the search of the informant's vehicle she couldn't recall the details of the search that one  outrageous government conduct whether there were other problems and the case really don't matter doesn't matter you know the case judge is far worse than yours i hope we don't have to rely on that i'm not sure what we would do with activists if we had to consider but this this is not anywhere near that your only issue defendant failed to meet his burden of showing actual prejudice there was no concrete evidence in the record that defendant had suffered any actual prejudice defendant failed to submit any sworn declarations he failed to testify at an evidentiary hearing he felt to present any evidence as to what exactly was the prejudice that he had suffered in his papers he asserted three categories of prejudice the first was the loss of witnesses the second was the loss of text messages phone calls and the third was the ability to seek a concurrent sentence with respect to the loss of witnesses government would like to point out to the panel that and i made twenty fifteen letter and this is in the record at the are six thirty six the government informed defense counsel of a confidential witness that who form the government that the c i used to sleep with the defendant that the c i slept with and did drugs with the defendant and the defendant had a serious girlfriend at that time the last months before trial defense counsel knew that there was at least one other witness to this relationship yet defense counsel failed to pursue that lead instead defense counsel simply asserted that witnesses could not be located and making that assertion he failed to identify again but who the last witnesses were their identities number of such witnesses or to explain their relationship with respect to the last text messages defendant who was a party to these exchanges could have submitted a declaration he could have he was a percipient witness to these exchanges to these phone calls to these text messages but again he submitted absolutely nothing and it was his burden of showing what prejudice it was that he had suffered as this court's precedent makes clear that the mere absence of records is not enough to establish actual process actual prejudice in defined it needs to show how he was actually it would have been nice knowing it was less than ideal if the government did not know your honor but ultimately what simpson says is that it doesn't matter even if the government had no and so long as the conduct is not attributable to the government  that what matters is what the government knew at the time and if the government was not directing the cia to actually engage in intimate relations with the defendant then that's not what rises to the level of outrageous government frequently gates only an ideal behavior let's bring it down a level to customary behavior do you keep track of whether your confidential informant in gauging and drugs selling drugs on the side what the relationship is with the person targeting yes your honor and in this case there is in the record for instance one can see that the f b i was constantly admoni this particular confidential informant about behavior that she was supposed to be engaging in or not engaging and the f b i was constantly monitoring the c i that she was not supposed to be engaging in otherwise illegal activities and said to get the thr defendants argument is essentially that the cia manipulated him into selling methamphetamine but that's not what the record shows whatsoever the record shows that the defendant was excited about selling methamphetamine to the confidential informant  he never showed any sort of hesitation for instance the transcript in this is our six hundred for instance clearly shows that defendant was excited about the fact that he was selling a confidential informant a whole ounce he constantly told her not to smash it because he wanted her buyer to see how good it looked defendant told the c r i want him to see it so he can buy another one i want him to get it like this so he can buy another one there is under these circumstances there's nothing in the record to suggest that the confidential informant manipulated the defendant to sell him the drugs and one final point the defendant takes the position that he was at one point and this is not entirely clear from the record that he may have been in special ed classes that sat in his jail phone calls that the government obtained you know when it was in his interest he was a smart criminal and he he embraced his role as a criminal one point telling his