n'est either one of these could be a grounds for granting relief fund of this to the bottom in this case rings the bell on all three of these issues the bad faith itself could be easily established from the fact that when the government presented this matter to the grand jury in two thousand and seven which was four years following the events they had no evidence whatsoever that beauvais had done anything inappropriate they that kit that particular area that was in question was property damage to heavy equipment at the marcy excavations project at a landfill near buffalo and that damage has occurred shortly after within a couple of weeks or a week after a meeting the mystery of it was a business manager for the union had met with mr hale who is the president of marcy excavation and his associate occurred and that what mr masers mr hill said was that mr beauvais said if they didn't sign this agreement than other contractors had been picketed mr hill said that to the state police he also  lasted for several years until months before the grand jury presentation when investigators an assistant u s attorney confirmed that mr hill's testimony was the same all that mr bill they had quote threatened if mr hale tells the grand jury that that mr beauvais said that contractors who had not signed the agreement with the union had had their dam their property damaged first time this came up nobody had reviewed with him his prior statements this all came out in the testimony he was not challenged as to how he could have such a radical change in thought when his contemporaneous views were very very clear when he was not challenged in the grand jury in the grand you're outside the grand jury by the prosecutor nobody vetted this as far as we know you know judge scraggly refused to conduct a hearing on this question ever at the time we first discovered it which was after the trial began and we'll talk about that but also  connection with the hyde amendment claim it was never so what's the job of prosecuting the situation mr bruce who is a prosecutor at the trial did an affidavit in response to our claim he never suggested that there was any reason to believe from stories that they tell multiple times that's why lawyers cross examine with prior inconsistent statements so what so what do we have what's the basis here for and well first of all mr hill was highly motivated in a seventh shortly after the day the sandwiches covered to tell anything about people he suspected he gave names of suspects to the state police investigator he didn't mention anything about mr buffett he didn't mention anything about any threats to a few days later to another state police investigator both these individuals testify we have written statement said that mr bud day specifically said with respect to what beauvais said about contractors who had not signed with the union that what mr book based said was that they would be picketed specifically said that he reaffirmed that exact same phraseology later in l a n r b affidavit he was highly motivated at that time if there's anything suspicious about threatening anything threatening about what mr povey had said a represent of the union which he has very upset with you be highly motivated that time to say these and the testimony the statement in or be is a sworn statement plus there is no explanation he is not saying oh you me i realized i was mistaken to talk to the state police the prosecutors never challenge him the never if that was on the up and up they would have let the grand jury know he had made these prior statements before and let the grand jury decide this is the problem is the essence of the problem under this you know as you know there's no obligation to present exculpatory material to the grand you know but under under monye under no pew where or what the prosecutor knows this information which actually contradicts that person's testimony that is misleading the grand jury this isn't a question of there's an alternative theory of innocence that the prosecutors are present and there's a witness as the saying now he threatened me when previously and contemporaneously said no there wasn't a threat and neither in response to our motions that time norma sponsor the hyde amendment claim did mr bruce ever say i believe hales grand jury testimony i had some reason to believe that net is not there the judge greg never even addressed this issue the government doesn't address this issue then or now it's just brushed aside so so i would say contractually not only is it the fact of what happened but that they're even silent about it nobody's and i guess to the  infinitesimal credit of mr bruce he wouldn't dare to come forth and say he believed it because who could who if this is switched around if mr hill was on trial for perjury and i think nobody would ask the question you know what grounds there would have been to find him perjuries perjury is grand jury system it's very it's the kind of it's too clear it's just too clear plus contest the government doesn't deny the government offers no reason to believe that testimony no excuse for offering it so i think that that's so that's the beginning of it but i think that this is bolstered again bad faith is false about what happened after this so after the grand  hears that testimony the government does not put that particular evidence in the indictment or the superseding indictment or the second superseding indictment so there's nothing in indictment that suggests that both may three had threatened mr hale back in two thousand and seven it's it's scrubbed of that so in the discovery we're not given any record of that information we get to the point for years i was saying to judge scraggy mr bob is innocent the trial the government's covering up then there's a pretrial disclosure order regarding prior statements and the government asked the judge to make an exception for any witnesses who might feel threatened by the defendants and not witness whether they really feel threatened now why would help feel threatened we have statements by him to the state police and to the n l r b where he says nothing incriminatory so why would he feel threatened by us well it turns out mr bruce violated or disobey that or did not contact mr hale to confirm this and yet kept that secret still so that prior to trial we had no notice of this claim and might i have said that's for the purpose of making sure we could not raise this in a motion to dismiss prior to trial and i would not be able to open to the jury on this issue become is never denied that mr bruce never denied that there's no excuse offered for that so that coverup i think shows this the tragic since of wrongdoing that confirms the bad faith and the idea to get the most advantage as they could out of this and their mind the interesting thing is this is the only evidence they have that shows that mr from what you can for a couple build and parse for mr obey and mr brewster and the government does not even open on that issue just to preserve the surprise value of it in other words this is evidence which is so lacking in credibility by the amendment application should be affirmed this court has not yet decided what standard every review should be applied in these circumstances we would suggest an urge to the court that num of discretion standard apply that you follow the other circuit courts of appeal the district court judge had the best opportunity to evaluate the credibility of the witnesses and to assess the evidence  he has not provided any any case law to support there but under either standard the district court decision should be affirmed could you address some of the substantive matters raised by your adversary in terms of noncompliance with the made to dismiss the an indictment to preclude witness testimony and for acquittal at every step of the way judge scrutiny denied those motions motions to reconsider were also filed so judge scrutiny looked very carefully at both the legal and the factual basis for the claims in this matter and denied mr boldface arguments every step of the way there was a specific motion to preclude that was made with respect to mr bone or mr hale's testimony and that motion was denied judge scrutiny  ruled that the testimony was not provided in violation of his disclosure order that it was provided in a timely fashion he also determined that the testimony was not inherently unreliable and that should be a matter for the jury to decide in to weigh itself so i would suggest to the court that this issue was raised not once but twice before judge scr he clearly came down in favor of the test the prosecution and the testimony being a value weighted by the jury at the time now mr beauvais was given a very good reputation representation at the trial and he was acquitted at the end of the trial all of the arguments that mr mahoney is making today are arguments that support his acquittal however they do not support the hyde amendment application the burden in that case and the hyde amendment application is so high mr beauvais would have to prove by proof that the prosecution committed misconduct and not only misconduct but misconduct in the extreme one of one of his arguments is that your legal theory the government's legal theory was not sustainable and that should have been  obvious and became very clear over time and part of your response as i understand it is that this wasn't the decision of one prosecutor but that the legal theory had been vetted by others in the department and i'm going to what w thought it was signed that should we apply an objective standard rather than a kind of you know who else looked at it kind of standard to determining whether it was a sustainable legal theory or one that was so marginal as to  reflect an intention to subjective intention to go after this defendant well your honor with respect to the legal theory prior prior to trial  starting the defendants filed a motion to dismiss the indictment relying upon the sec or case and or the admin's case first of all your honor and then judge scrutiny  decided that the legal theory was supported by the admin's case a motion for for reconsideration was then filed and again judge scrutiny decided that the the indictment was sufficient and was sustainable trial then begins another round of motions is filed based upon at this point secor the course the case secor again judge scrutiny ruled that the evidence was sufficient again a motion to reconsider was filed and judge scrutiny again rule that the indictment was sufficient and the case could proceed again a rule twenty nine at the close of profiles filed judge scrutiny at their point reserved decision on that  matter i would suggest to the court that because of this heard font litigation and because of these rulings this is not a case where the prosecution is out on a limb testimony it was only before the grand jury that there is really a portion of his testimony that directly incriminates mr de as specifically includes a portion of the conversation where there's a threat made the diner prosecution has no obligation to present exculpatory evidence during a great jury proceeding if this is indeed viewed as exculpatory evidence so i would suggest to the court that there was no obligation at the grand jury stage and again i would refer the court to judged wouldn't necessarily be a bad faith claim on the on the part of the the appellant here they may not have had a constitutional obligation to develop expel that area but it's in the grand jury but they're not permitted to put on evidence that they have the basis for believing is not accurate not true mr mahoney argued that  mr bruce never said i believed mr hill's testimony that is a far cry from somebody who proof that is required that mr mr burroughs what so high the fact that mr bruce never affirmatively said i believe mr hill's testimony which i don't think he was obligated to do in the first instance is a is falls far short from showing that this demonstrating that this prosecution was done in the manner that the hyde amendment requires it could be attach any importance to the government's decision to dismiss record tearing at seven at trial that extortion i guess you're right or i would suggest to the court that that shows that we were not we did not we were acting appropriately that we made the decision that the proof did not warrant no not so early but i could be mistaken i wasn't at the trial your honor but i believe that was the case however again i would shout i would urge the court that they have chosen their the government was acting appropriately that the government was not out to embarrass and no i or harass mr beauvais by this press kitchen it was doing what it should have done which is a valid point the evidence and make a determination that one count should be dismissed voluntarily when the proof did not sustain so this this is an incredibly high burden mr beauvais carry needs to carry their burden and i would suggest to the court that there is no proof that this prosecution was that say she is frivolous or john pursued in bad faith and therefore i would urge the court the grand jury presentation after and after the else testimony he's pressed well wasn't there something else that mr beauvais said his own no can't remember masers nothing of the grand jury i'm direct this is going to be a funny story i'm direct they don't address it with major nothing about threats i ask the question one too many because full of confidence of the the way the record is said to mr mr major that well but mr mildmay didn't read any property damage so well yes he did ok so i opened up my big mouth that i had in my pocket his prior statements and he said and i said that to the place back and i called the police who came in testified no we didn't say that and here's a report to prove so so first of all and by the way that's after the trial begins they didn't have that before the trial so the put good faith here has to do with not thing and so and by the way so then we have other things that come out the government in their brief talks about testimony as being you know another thing that came out at the trial and this is this completely collusive thing where this guy first tells them that well who's never said a thing for years prior to trial about the day on the last witness says mr but they came and asked me if i would do night work a phrase nobody did use but it turns out that when a date meant that day in philadelphia with the iron workers union managed by the labor the department labor lawyers were also tending this trial where these are exactly the same phrase the ologies are indictment and they so somebody obviously said that phrase the sort of make it sort of coded criminal language network to france who use that a trial  explanation as to how france came up with this so that's another thing that shows the bad faith here concocting that evidence the government's offered not one word to defend that judge correctly refused to address that so  but it was something that had been used in this philadelphia case it's a code like one one in the hands shirts actually say ok except it never been used here it was just borrowed to enhance his testimony to embellish and the govern