please the court my name is daniel drake i'm an attorney from phoenix arizona repping nade and representing naden child beast i'd like to reserve about three minutes for a bottle i also want to advise judge graber that i have hearing aids and sometimes it's difficult for me to pick up comments so please bear with me on that if that if that should happen this is a case where the district court denied a motion for new trial dealing with the issues of whether the defendant had received discovery from the government prior to trial the district court denied it the motion without an evidentiary hearing not responsible for the failure to deliver any of the discovery of what had happened was this was a pro se defend that he was in custody at a pension facility and the government delivered to the marshal's office in our service a series of boxes destined for the defendant they were then delivered to the institution how they got handled precisely by the marshal service and to some extent what happened at the institution was not really clear mr chivers filed a pleading where he said he thought he had reviewed a bunch of things but the after he was transferred following trial from c c a to f c c he learned that he had nine boxes of discovery not six that he thought he'd originally had and he said he found things in the additional three boxes that were helpful to him and could have been used in the trial in his defense his defense in essence was mistaken identity or identity theft he did not deny that he knew the defendants in the criminal conspiracy only two of whom went to trial out of about nine i believe and he had a legitimate relationship with them he had lived at one of their houses for a period of time but the surveillance agents and the government paul cam and things  sort really hadn't caught much activity regarding him there was one episode where it was alleged that he was present when drugs were transferred but just on your surveillance agents was that somebody walked up to the car thr something into the car offended then got out of the car and went someplace else mr drake i might my concern is with the record that is before us and as i understand it the issue that was before the district court was whether or not there were documents that were not delivered to him before trial but could have been expelled the tory there man didn't and then this claim was raised so the record before the district court concluded as i understand it the government's list of all of the documents that were in the boxes is that correct that is correct the government the government gave a list and it also i believe attached the discovery letters that were there were a number of bank deposit slips from virginia that tended to show that well that showed that other people had deposited money into mr child beast's account in addition  mr credit card identification documents and a script that contained information that would help him help an individual pass a background check guys to mr tribe beside dennehy were found in the room of coconspirator who was not present a trial so under those circumstances he was going to argue these people had my information they had all the stuff that they could use against me and look these helped show that i was not there well but i think now correct me if i'm mistaken but i thought the district court said that those documents were in the boxes that were sent to him originally so they weren't newly discovered evidence that th with that finding well number one what all we have at this point is the representation of united states to that effect in the pleading that they filed there were no  i thought that we just i thought that was they supplied a list of documents that were sent i believe what they gave instead your honor was was the letters of transmittal and basically said that and they didn't indicate what the documents or no they indicated the documents by number that's my recollection and the problem is once everything gets to the institution mister doesn't have any control over it he can't get the stuff to him other than as a as the institution chooses to deliver it to him and in the what do you want to do i'd like to get it six boxes i mean an unfortunate position on that your honor i'm a successor counsel to the to the fellow who had the appeal before i picked up from him nine boxes of documents i started to go through and i f documents that according to the government were going to be in the second shipment the the three boxes he didn't get i found some of those documents in the first six boxes and i found some of the for example the attorney who had it and he could explain what he did with those documents whether he moved it around we could get that from the defendant as well the government could make clear what it produced and and explain in a more your time that attorney who was there theory of relief and his theory was that somehow in the first wave of discovery that was printed and sent to him in his detention facility those six boxes that somehow there was a mix up and some discovery that was subsequently produced to him was included in those first six boxes the government showed in the district court found as a factual matter that that claim was wrong that based on mr chide beasts contemporaneous admissions and the government's discovery correspondence and schedule that that just could not have been the case mr chivied has the burden here of showing that that factual finding was clearly erroneous and we've seen that he hasn't done so well the argument as i understand the argument that as i understand it would be to them that argument is that that was the it wasn't a fair proceeding because he really didn't have a chance to to say  the documents were that he was worried about so i'd like to address that on remain and in may of two thousand and fifteen the district court held a fairly extensive status conference to discuss these issues and how they would was represented counsel throughout the remaining proceedings they were then afforded essentially seven months they didn't file a supplemental brief until november twenty eighth two thousand and fifteen they had those seven months to take as much time as they needed to review the nine boxes prepare whatever written submissions they felt necessary to substantiate their burden of proof and in fact they filed a twelve page supplemental motion with exhibits the government filed a response thirteen pages with exhibits there was a reply brief in a circle i prefer nothing prevented the defendant from attaching any sworn declarations or affidavits if  after all pre thing was issued the defense did submit a request for an oral argument in an evidentiary hearing and the district court judge said i want to review everything that has been submitted and then all you know determine whether i can decide t the first six or anything like that that's absolutely correct your honor so this isn't anything like the cases cited in the briefs where the court found some sort of abuse of discretion for not holding an evidentiary hearing in those cases there was that kind of quantum of proof there were declarations or affidavits from attorneys or in german kind of cases from other jurors that indicated reason to believe that misconduct had occurred we never reach that threshold of proof here where all these boxes of well whatever they were bank records where they are relative to that laundering charge or the drug charge or what well that's that's a great question so the bank records these check deposit slips were mr claimed relevant to claims involving the use of his bank accounts for money laundering activities but all he said was that they would show that other people were depositing money into his accounts and that's what the government argued at trial and showed a trial other people were and the government's argument was that he had authorized that and nothing in the documents he attached called that into question there were multiple other sources of proof that the government introduced a trial to demonstrate mr guilt for instance there was the transaction where he acted as a lookout at a shopping mall in tempe arizona and then he was observed by surveillance agents driving away with mr or tease the leader of the conspiracy driving in a very erratic manner speeding up slowing down cutting across multiple lanes of traffic as if he were trying to detect some sort of did tell and i know that nothing that mr chaifetz has pointed to any of that into question there was also testimony and evidence at trial about how he  and his son but he fully presented that to the jury and the jury rejected all of that and and found him guilty again there's nothing in these in any of the briefing on remain and that calls any of that into question the list of the disclosures made by the government are attachments to his motion exhibits one two and three and they appear at the two are ninety two through one of two they end with a number that is someplace like two thousand three hundred twenty thousand three hundred the defendant attached to one of his motions or referenced in his motion transcripts that he said included numbers that were higher than that so i suggest that there is a discrepancy between what the government says it produced and some of the numbers that were actually produced secondly  the there was an affidavit that appears to be included in the documents and the references to the matters outside the page range or to e r one forty and one forty one with respect to the surveillance and the driving erratically those were interpretations by the officers of actions that they saw and what they thought to be  suspicious or criminal activity there was nobody inside the car except in this other fellow was driving but we don't know what directions were given or what advice was given to him as he was told to drive and if you've ever had somebody telling you how to drive a car when you're driving it could be fairly termed erratic so our point is that mister deserves that opportunity to present some evidence thank