please the court just one moment i think we're still getting settled sorry thank you may it please the court i'm just one hundred with the federal defenders of montana representing mr sanchez in this case i'll start out by saying that i'm we stand on the briefs it concerns the suppression and jury instruction issues and i'll focus today on the brady and rule thirty three arguments this case is about a calendar note that the government actively suppressed for ninety one d after mr sanchez was convicted this case has always been about who did what there were five people present on the night of the incident april th two thousand dollars of those people testified so what they said and how the jury assessed their credibility made the difference in their determination of mr sanchez this guilt the calendar note that came to light the day after mr sanchez's verdict something that the government was aware within twenty four hours stated that this person who is three fingers we believe and the evidence strongly supports was full of regret she didn't actually say truthfully what she went to the extent to her involvement in the crime she notes that in the in the calendar note she states that she was outside of the car and got the gas can these are two statements that are completely contrary to what she said at trial do you agree that this is impeachment evidence i agree yes it is powerful impeachment evidence as noted by the district court so then the question i have with respect to your argument is basically you're saying well if the pietschmann evidence you know had come in then the jury would be more likely to realize that testimony afterwards would be the truth and having then confronted with this impeachment evidence you know there would be a light bill would go off and then the jury would put all this together my concern with the argument and the would appreciate your response is that basically  turns impeachment on its head because in every case where it's just impeachment evidence you have that situation maybe it will impeach maybe it won't maybe the person be more believable but i don't see how that changes the legal analysis here it changes the legal analysis in this case because it's not just merely impeachment evidence the court noted it's powerful impeachment evidence and it goes directly to how she testified and which her testimony is not just about getting the gas can if this note is to be believed and presented if the jury heard that she talked about how the others were involved if the jury believed three fingers was more credible the whole narrative changes and how mr sanchez being the primary bad actor as found by the jury that she was outside getting a gas can then maybe also the other testimony she talks about mr sanchez was not the threatening party mr sanchez become more believable with this evidence that's correct but it but isn't this the classic are you lying now were you lying then you know that whole thing colloquy people go through isn't that what impeachment evidence is i don't understand quite how the fact that it might be powerful impeachment evidence actually changes you know the fact that it's not substantive exculpatory evidence powerful impeachment evidence can support a new trial and in this case was still a brady violation because it was actively suppressed and affects the reasonable probability that the jury would have not found mr sanchez guilty of st degree murder under an aiding abetting in theory they had before them a  created the note that's correct your heart and what takes in full circle what we're saying yes in this case the jury on a on a case where it mattered most who did what and who the jury is assessing credibility at least when under a brady and their analysis and under rule thirty three dollars analysis mr stan sheds should be afforded the opportunity to have that evidence assessed by the jury and evidence whatsoever it can be impeachment evidence can still warrant a new trial if there is a reasonable probability the jury would have come to a different conclusion and here that is because it effects the narrative that she presented to the jury and how she would be paid be believed and how they would assess the credibility of the other people involved but he had it have an opportunity to use this for a neutral motion correct that is correct if i'm understanding your art here says question correctly the prejudice still is that this evidence was not allowed to go before the jury the district court made the assessment for the jury utilizing a post brady trial rule with no citation to authority that because we got to present our argument post trial that's the remedy this is a brady constitutional violation and there is prejudice in this case because the jury could have convicted him of nd degree murder instead he was convicted of st degree murder and this evidence is evidence that they should go back for the jury to make that assessment i just don't see this impeaching evidence would lead the jury to maybe discredit the other witnesses again i'm having a hard time connecting that argument so if this evidence was presented you would have her placed outside of the car when she said she wasn't getting a gas can we don't know what other story would develop about that gas can should we be able to present that separately from that her other testimony did not place mr sanchez in the culpable position of st degree murder it placed him not threatening anybody it placed him not pouring gasoline on anybody it placed him not lighting anybody on fire those statements came from whiteman and frank sanchez if the jury believed three fingers over white men in sanchez they would not have found him guilty of st degree murder they would have had the ability to assess her testimony in light of a nd degree murder jury instruction if there are no further questions i'll reserve the rest of my time for me thank you good morning your honour's leave johnson for the united states and may please the court i guess i'll dive right into the calendar entry issue and i think for the record i just want to run through the timeline on that calendar entry it was it was discovered obviously the day after the jury verdict came down but forensic analysis showed that that calendar entry was created sometime around june  nd about two months after the murder and i think it's useful noting for the record that three fingers later gave grand jury testimony she also testified at trial and she gave two post conviction interviews and if you believe that the calendar entry which was never authenticated to her it basically expresses regret about not fully telling the truth she clearly had four opportunities to tell a more full story as contained in the calendar entry and she never did it and in fact as judge noted she denied ever writing the calendar entry when she was confronted directly with that post conviction so we have that secondly is is this merely impeaching evidence the district court basically found at page thirty three dollars of the record that it is merely impeaching for the very good reason that three figures was the least incriminating of the four witnesses who discussed the murder and that for important reason is that she never testified about the events that happened outside the car so even if this calendar entry was powerful incriminating and evidence that could discredit her completely the government's case with the remaining three witnesses was very strong because it dealt with the events that happened outside the car one of the statements counsel made this morning was well that the calendar entry would establish that three fingers was outside the car and that she may have observed what happened with the gas can and just to just to set the scene here her testimony and this is roughly in the two hundreds in the record her testimony is that  the other witnesses that when they were in the car white men gets in a fight with the victim rides horse in the backseat white man is reaching back behind the front seat that fight continues they say pull the cork car over the defendant driving the car pulls the car over and everyone gets out and at that point three fingers gets out with everyone and this fight between white men and rides horse then progresses and it gets worse and at some point they she gets so beaten they strip her clothes and then things really start to get serious and at that point and this is what three fingers basically says at that point t marzio and frank sanchez basically said get in the car and at that point they had opened the trunk and they were looking for the gas cans she mentions that in her testimony and she was ordered into the car by the defendant his brother and white man was still out of the out of the car at that point and then from there forward they teller stay in the car turn up the radio and don't look out which she does it's fairly primitive a thing evidence on its own but it's certainly not incriminating evidence on what was going on outside the car so to the extent that the calendar entry mentions a gas can she already mentions a gas can and it doesn't necessarily contradict her testimony on that nor does it contradict any of the other testimony about the gas can as we know from frank sanchez the defendant asked him to hand a gas can and at that point white man testified that she observed the defendant po gas on the victim and later on fire as they all ran to the car and as you'll recall from three fingers testimony she brought that story full circle when she remembers the three of them running back to the car and jumping in and threatening them not to look outside and not to say anything so her testimony is incriminating and to the extent that her credibility is somehow bolstered by this stream of inferences that the defense would like to concoct  here it simply doesn't change anything whatever is in the know which is that she may have kicked her on the side of the head and that she may have helped find the gas can doesn't diminish the other testimony that she gave in the trial and certainly doesn't affect the other testimony about the events of the murder and i would ask the court to look to the haixun case which i know the district court relied on here  made clear that in order for impeaching evidence to satisfy the new trial requirement it has to be more than mere speculation and post hoc speculation about how the impeachment might have played out a trial but it has to be central to the evidence that resulted in conviction it has to be central to the government's case and they simply can't make that argument here it might have been mildly impeaching of three fingers but it certainly wasn't powerful impeachment evidence that undercut the government's primary evidence of conviction if the court has no questions of me here thank you i think will rest in our brief on the remaining issues and ask the court to  have discussion today has been about it seems like that we're speculating or where we have a stream of inferences for this court to undertake there is a certain amount of speculation because we don't know what the jury would have done with this evidence the fact remains under brady and under real rule thirty three i definitively know that those tenants of law require fairness and the fairness in this case does not exist as long as there are four witnesses present that night the jury heard testimony as to what occurred from those four witnesses and now we have a calendar note placing one of those witnesses in a different posture than how she testified it is not to be reviewed in just a vacuum with just her testimony the review is in car getting a gas can it we also if the jury has to believe that what she's saying is true is more true than what frank sanchez and anjelica white men are saying they're going to not going to believe that it's for the jury to determine who is doing what again if she is the one who wants to believe be believed more what she says about white men threatening others what she says about frank undertaking the actions he did what people leave more than angelica and frank who both stated their participation was limited in the event that's how it affects the whole narrative and mr sanchez's offense conduct with regard to that we are asking in this case for this case to go back so the jury may do its job and assess this evidence because we cannot know definitively what it would do maybe the jury would come out with the same verdict but again we have a st degree murder charge and it's st degree murder jury instruction as well as the nd degree murder during instruction there is a big difference between those two if the jury believes that mr sanchez was not the primary bad actor i incumbent on this court to send back this case so that that evidence can be presented and that assessment can be made thank you thank you for your argument and thank you mr johnson both of you