power as a judicial officer to either order a material witness to cater to release that witness so are you clear so in general a magistrate judge can do this to you group yes your so is your argument is that he couldn't she couldn't in this case because it turned down in your view to be a dispositive order that your honor and it was not a pretrial matter for which the court had issue well let's assume for a moment that you're right just for purposes of our discussion what i've been puzzled about in this case is what prejudiced your client faced by not having the material witness present probably because you have the option to take depositions that ask any question you want to wend your client went to trial she didn't present any evidence at all or you please tell the court what the material witness would have by government one by seventy s and one by office or more all those statements that indicated that the material witness said that he was from the area and they say he was a u s citizen were not available to us in order to a jury rig they could assess credibility you should read that in this case though there was a substantial amount of evidence that was presented that was more than enough  completely says what is it that's a separate organism you get you have the right to review and you got to appeal the order to the district judge your complaint is that the government in effect mooted it  deporting go in this before you got to the judge so it seems to me the question of the magistrate judge is power and your ability to appeal it are separate from whether the government is something wrong by deporting thank you your honor bright hawkins for the united states may it please the court the united states is asking this court to burn the judgment and sentence the district court did not commit error to appeal a magistrate judge his release order to the district court no your honor the defendant down under the statutory construction once a deposition has as occurred which did happen in this case this actually says that the witness shall be release person can venture appeal that ruling to the district judge yes mentoring and your bench are attempted to do so and in effect the government mooted dead appeal by deporting the witness while the appeal was pending so can you address that that strikes me is really the reason that we're here is that had to district judge consider that appeal she would have either said yes or no and we would have had  a record from the district judge to proceed on but you blew the appeal by deport not you but the government to the appeal by deporting the witness is something wrong with that no your honor that the government acted within the normal course in these cases and most importantly pursuant to the magistrate judge's order to release the witness from the custody of the department of justice to the custody of the department of homeland security fo return to his country of origin so the government had no other choice but to comply with the enforceable order of the magistrate judge and there was no stay in place after the video deposition and the magistrate judge even even said to the defendant if you want to stay you can file something with the district court but there was an appeal four days more quickly well not only that that they should have asked for a stay of the magistrate's order from the district court which is not what happened the only thing to happen by the time they got to this because under well established case law from this court in the supreme court is the defendant's burden to establish both bad faith and prejudice in order to prevail on her claim here and the defendant fails on both in this case it's not bad faith for the government to comply with in forcible order from the magistrate judge to release a witness from the custody of the apartment of justice to homeland security for the commencement of immigration proceedings which is what happened to the powell fails to establish prejudice throughout this case and there simply is not a record that there is material evidence that the material witnesses would have been able to provide after the video deposition that would have been favorable  i don't i'm not necessarily saying that it has to be what form the showing has to take but the defendant has to be able to make a showing in some way of what the prejudice is a proffer certainly would be one avenue and i believe that defendant to be able to establish in ways that she was prejudiced to the extent that it could have affected the outcome of the trial and the defended fails to meet both that faith and prejudice in this case  prejudice in such cases only were its appearance to the government usually i think i can only think of one cases that is similar where bad faith was found and sorry is that and similar it's in this case there are i not allowing that if any you have review it is error that is structural impacts the fundamental framework of the trial itself whether or not an individual was going to be available for trial right so that's what i wanted to get to and it was the question we ended with and it does why has mr hopkins spent this does he have a sequence right the magistrate judge said i'm going to object to to the failure to the magistrate to grant the stay and i also think i believe that i have the right to depend on the government to act in good faith knowing that there's an