the chronology of this case demonstrates pervasive misconduct by the government the government had been served with exhibits under seal on november par the evidence which was provided to the government district demonstrated that the southern form it was reaching out in soliciting methamphetamine transactions in all three cases at the exact same they all were aware from the november seventeenth filing of the motion for reconsideration but earlier than that a year earlier on november thirtieth of two thousand and two that the s  foreman was working with the informant in order to solicit methamphetamine transactions from individuals who we provided evidence of all three had no background in supervisor was the same supervisor who was working on the part case the supervisor was coordinating the efforts by the of lower level li i've heard and seen a number of times in the papers in the record that the stuff in front of us cooper was sealed if it's sealed would it have been appropriate for the government to disclose that information well from the defense the defense never disclosed any of the sealed documents whether the guy clearly the government had access to the sealed documents because they were served on the government because of the highly relevant nature of these documents had an obligation under brady obligation to disclose those to the to the defense if they don't what would what would it have disclosed the fact that there's some kind of sealed documents and i can't tell you what they are who they involved put words in your mouth or your head but if the government started circulating this to the office for use in other cases with that finally the sealing order oh i don't directly before us because as i understand you are not complaining ultimately about anything on the air to provide any additional information about the other cases on and they just think this and it doesn't appear to me that complaining that they didn't disclose going on and all these other cases too i also think that the it was going the other cases based on four or four be a modus operandi was was critical but the government did not disclose the phone records of the informant but a critical component issue that judge your honor judge judge first on focus on is the continuous the misrepresentation of the government in the the battle over the continuance was specifically that the sub informant sole role in this case was to introduce the defendant to the informant that the government stated that it's not requests for continuing stated that a trial stated that in in the motion for a new trial the only time it's ever made any reference that that was an accurate statement is before your honor's in this court that that was a misrepresentation an inaccurate misrepresentation and judge a gesture of receipt in the district court specifically said i will not grant this a continuance because i find the only role of the southern foreman was to introduce the informant to the defendant has signed a sworn declaration he has presented to the court he was there for cross examination he stated he did not have these records and then your honor if you can if you look at the comparison between some informants records and the informant records know the answer is that they went to his father and it's an interesting shot in the dark as all it was was a shot in the dark with no inkling some answers like i was coming well your hon counsel never found out that information mr parker's house of the appellant before this court was completely in the dark about anything regarding these records and he provided a sworn declaration and there was no cross examination by the district judge that were drafted by the government which which i have jacked with you which the district judge never had access to my objections because i was never served as counsel of record with their proposed findings but the of the southern format was to introduce the informant to the defendant that's happening now before the court of appeals but prior when the district court embrace the government's position the district court did so based on the government's would you gotten from either i continuance for additional information that would have done better than mine well what he would have shown is that ok it would have taken that explanation and tossed it in the trash it would say well on this day make all these calls he wasn't controlling and forcing and pressuring but i guess i'm sort of with what is it had to say well and after those calls  on other arrangements but only two or three cases two or three calls had to do with the the drug transaction that was to transpire actually talking about now the informant being  how much it was like in a three week period but unequivocally the informant took the witness stand and stated i deal with the drug dealers he just introduced me and then we move on the southern form it unequivocally under oath reports reflecting that the government was aware of the southern form and back in november of two thousand and two there were transcripts from the court where a case where agent black takes the witness stand in the content how are we going to make any determination what actually the say whether this was a solicitation perhaps there they have a stronger case tell you why i think this whole situation is very disturbing what the government was doing and just having a hard time fact that at the instant time he was contacting and where and calling and soliciting people from his past that had no criminal history think of the ramifications of this mr parra mr rodriguez  agents were in collusion with them and then the government to counsel takes that in closing arguments is they're all telling the truth what the what the jury have then thought and with regard to mr misconduct for a motion for a new trial trial before i discuss those issues i do want to assure the members of this court that in making those arguments the government understands and our office understands and i understand that their word deficiencies in the way omething in court orally or in writing and it isn't accurate that is of course an unfortunate matter so the court that is correct and we did try to rectify it when it came to light that this statement had been made and that the there's some sort of informant testifying particularly in this case one who's been called by the defense and about whom the government at very little interaction i don't think it's that surprising unfortunate that certain things that are examination which i think is was critical in the case your honor was referring to there was the idea that to correct it after the jury's heard all the evidence in fact after the defense has given their closing was an agent for the government and that we would not be calling him at trial and that was part of the clarification that was made a court to overcome the initial sheer understanding about th i believe that one when one looks at that transcript it is very clear that what the trial prosecutor did was hand over the telephone records that were being  seventy eight and a little bit later he said but i just wanted to make sure that the court understood exactly what the situation was with respect to those who records that's what lines fifteen through seventeen  tay is is that i don't know who prepared his his declaration or the circumstances of it but certainly it just appears mr all of was mistaken about which phone records were being discussed which certainly could be an innocent mistake given that there were a number of phone records that were involved in the case and the district court having been at the trial having seen this exchange which is reflected in the transcript explicitly found that no later than friday morning on january sixteenth the defense did have the confidential informants phone records and of course it appears that mr and ricky how much ceo's council have them earlier defense's request for a continuance which was the sixth request for a continuance and i think it was appropriate for the district court to take that fact into account in deciding whether there would be yet another the case before judge crew for the alvarez case there wasn't any new facts or evidence in the case but in december we had a hearing cooper indicated that she was going to order some discovery that the government had previously said would lead to the dismissal of the case and because realizing in effect her discovery order was that and then it was later in this and then in december she made the order and we came back and then we came back and said well where we want to have an evidentiary hearing and then u of what was going on when there was a request for the continuance to set forth in the defense papers for the continuance and that were papers that were filed on january eleventh two thousand  mr all the asked for ten categories of documents and i think the only one he ultimately did not get was category seven which was a list of all cases by the some informant but we understood that as again a certainly i would have authorized that because it was already out there and so there would have been and if the reason was it was under seal and somebody had approached it's a trial lawyer or me in the alvarez case to have it unsealed through a protective order for purposes of the parra case we would have we would have done that but in response to judge fernandez earlier questions your honor i do want to all the information in the other cases or and under seal filings and if i thought that was you know relevant in a gig leo or brady way to that particular case then whether or not it was under seal  over in the park case and of course if there had been a specific request for the cia's phone records we certainly would have turned over those again to analyze or look at the phone records of the informant and the defendant  that again certainly my my understanding which again was a couple levels removed but was that they had that information and again to the extent that it was not that the c should not have that at that moment gotten about that and long before that asked for a severance in this case well your honor first again and it's i think to go back  ineffective it really requires an evidentiary hearing through a twenty to fifty five where the parties in the court can hear his side of the story i had very little experience as a defense attorney myself and i was not want boarding the titanic then you know having the warrior do so so i i can't really criticize why the decision was made to go to trial of course in drug case the sometimes for the mandatory minimum so you have the choice of going to trial and getting twenty look beyond that to the agents and the way they're running these cases yet it's disturbing when you're have people with no prior records and you've got a set of informant who makes fifty or sixty contacts with them trial has stated in his monograph on confidential informants anytime confidential informants are gauging activity where they are not being closely monitored by the special agents and in terms of whenever there are about the case that the prosecutors do not know about that the agents do know about and there is not very close communication then certainly the possibilities of problems and  negotiations there or what that gave kind of a check on the on any unmonitored activity that would have happened and therefore by reviewing those there was some objective evidence as to what the course of the negotiations had been and defend its willingness to do the deal and in fact without excusing again the important need to have constant monitoring on all aspects of the investigation i do think in in fact that there were aspects of this investigation that were well done and in that regard i think the agents although i reluctantly had to criticize some of their decisions i do think in the setting up of the deals and having the tape recordings and in that aspect of these cases i think they were well done and i think that does give us a comfort level that entrapment was not  occurring and also in that regard very quickly your honor on the predisposition issues the juvenile testified in the santa ana  and he in fact did not give an account of particularly being in traffic sensually he said mr gomez approached him and he said yeah i'll see what i can do and he went out and arranged a very large methamphetamine deal and one of the large amount of methamphetamine certainly is something that's jurors could well think did not reflect well on his predispositions so again i think that even if when one looks through all the information in all of the combined cases there was not the sort of specific in detailed evidence of entrapment that would have made a difference in this particular trial thank you very much deputy had changed their position january seventh they said he that the informant was not an agent you're not entitled to discovery january eighth that they said that some informant is an agent exactly the same situation that and that was even the second time i think he said that that's correct and that was that was wrong that was a misrepresentation to the court the court the district court then heard this information said i find that the only role of the southern foreman was to introduce the defendant to the informant and therefore a continuance is not necessary it's not his probing you have enough information this is a government we have to impute knowledge upon the line deputy when the agents clearly knew when the supervisor clearly knew and the district court was deceived moreover the issue with regard to the telephone records that were produced on the informant on january sixteenth we have produced the highest level of evidence possible a sworn declaration a of an attorney of law who would be disbarred if he was lying before a court of law they have produced nothing they have produced not oprah just a transcript which appears to say something to that effect  based on on on something but moreover your honor the records apparently if they were produced which are i'm from the representation the interned they were produced after the informant had already testify on the fourth day of trial