the honorable the judges of the united states court of appeals for the fourth circuit oh yea oh yea ok all persons having any manner or form of business before the honorable the united states court of appeals for the fourth circuit are not and give their attention for the court people from the western district of virginia federal public defender's office who are here on behalf of carlos caro it's a capital twenty two fifty five appeal that was previously before your honor's on direct appeal several years back the issues we intend to argue this morning well there are only two issues in the briefs one is the certified claimant that brady was violated brady versus maryland was violated when for the court this morning back claiming it was a claim that trial counsel rendered ineffective assistance where they failed to present mental health mitigating evidence to the sentencing your i'll start with the brady claim expert going back about thirty years testified to some anecdotal evidence that he picked up from the opi official at florence that many of the inmates there stay there for five years or longer mr gabriel and perhaps it would be useful if you would tell us as a threshold matter how this this brain is substantively different from the brady klein who was raised on direct defense presented a series of discovery motions to the magistrate judge when asked for discovery under rule sixteen of the federal rules of criminal procedure one under rule seventeen a request for authorization served peanuts for trial counsel filed now comes david karla's david caro counsel as moves this court to require the government to reveal to defendant's counsel and to permit inspection topic of all information with serial known to the government or under control which may be favorable to defendant on the issue of punishment within the scope  appeal number seven dash five that your honors decided and in the appeal brief the rule sixteen rule seventeen claims are raised and the prejudice argument is simply the one under section thirty five ninety five with respect to error analysis there was no setting forth of the test for brady there was no allegation that there was any brady of events that have been discovered that could be raised maybe in a post trial motion or or you  feel in what direct appellate counsel did was it your honor that they included a footnote in which they said that if if the rule sixteen motion were granted by this court they would also ask that whatever material was produced by another panel of this court in the united states versus king and it was a similar circumstance where the allegation was that the government had withheld i think a grand jury transcript would have reached that witness in the the withholding of that brady evidence went up on appeal to this court and the court said that the defendant has to make a plausible show where the government possesses the evidence not the words it's not something it's because you're in the sense that in most brady claims the evidence is discovered by the defendant in some other kind of investigate doing some other going to investigate a function it's usually not some point something that's the parties accept is in the possession of the government but in that case the government didn't turn over up with the terminology i think different from what this court used are it this is this is judge said let me ask a question it just joke and if you don't mind i want to clarify a point you think this issue no matter ruling is that the standard for what is discoverable broader then why it has to be turned over under brady yes it is your honor so so if you lost the substantive no matter what you call it is just duncan's point now the substantive issue is the same issue whether the government has to turn over this information about how long people stay in supermax that was it's considered to be broader than brady because it also includes a tory up as well as exculpatory evidence there if the if the defendant can show that the information is necessary to his defense but it's quite apart from the brady claim because in the the rule sixty the rule seventeen claims that were raised on appeal but those are allegations of simply trial court error and failing to order the discovery request that the brady claim is that is a burden on the government as even as new evidence may become known to the government it has a duty to go ahead and disclose i know the evidence but that didn't change the standard under which we review it discovery availability is looked at in much more lenient fashion than brady material in other words the court is more likely on of the appropriate standard to allow something to be discovered but then they can still not be very material so a you lost direct appeal your client didn't own on this issue and whether or not the government had to provide it under standard much more lenient and favorable to you so how did how do you win when you impose a tougher standard looking at prior ruling we did talk about very but even if we hadn't talked about it it seems to me you get caught in a situation that you this court has reviewed this request and this request is no matter what you label it for this information and we review that under standard much more right on my client to get radio buttons and i wouldn't i would agree with that the burden remains with the governments or produce that if it exists the problem of course on direct appeal was in this court noted that the defendant couldn't prove that anything that the government was withholding never raised a brady claim in any fashion i think they understood that to bring the brady claim they were going to have to find the evidence try to create better evidence that they believe the government was withholding and they were very clear it was very clear in a in a footnote disclose records comparable to the ones that mr carro has sought in his litigation otherwise the there would be there would be no evidence with which to support the brady claim but there was absolutely no brady claim before this court and direct appeal  troubled by that in light of what was presented by the parties at the court certainly i mean i think the court's decision can be harmonized with that decision in united states versus that came to ten months later because i think this court used different terminology can or cannot cannot cannot be harmonized or i think it can be harmonized with united states versus because i think that's the that's where the standard is the you know the plausible showing in all that gets the defendant is the production of documents or for a for inspection at that point and so i think that again i think that the language this court used in the direct appeal opinion it sounds like it was deciding a substan with the rule sixteen rule seventeen motions that somehow carlos counts were bringing those claims along the break during the brady time along with those placed in the direct appeal but as i said in a in a footnote counsel were very careful to remember the district court so it could assess whether the result also due process violation under brady but there was no there was no allegation that the trial court heard in failing to force the disclosure of the brady material in there was no substantive brady claim raised i think the second question your honor was what is the b o p hair i believe you asked what is it that the  and what's not in mr real and i think that's the joint appendix one eighteen and one nineteen she says of the north central regional office of the peel he maintains a lot of all of the proceedings that come could have been made available by the b o p after cunningham later relied on the same affidavit or declaration from the bill he personally to to indicate that he agreed that there were at least one hundred ninety five people who said then and these were known which  feel there was just no snow place to go with that anyway and with that said your honor i said my my my time has expired i'll go ahead and save the remind me any time for rebuttal thank you thank spec we disagree with with my colleague here i think this would get in fact addressed the issue brady squarely in its two thousand and ten opinion i think it judge jones squarely addressed the issue of materiality in his initial opinion and he addressed it again  is still not material and it's not material for a number of reasons the issue of length of stay contrary to what mr karr was has alleged was not really the crux of the future dangerousne this the goal is you could modify this person sufficiently to get their attention sufficiently so they could be returned to a prison setting that would be a peep presence that they all describe be this step down program we all agreed exist of the record based on what you just say when you said that quote nobody said that he'd be out in three years to say it was all get to the jury they all said they said he would be out in three years yes doctor ect is there is not are people there up will have been there for a long long time and in fact stay there regardless of this three step program and that's what the government suppressed and they now know that and we had a case here we said you could restricted for the rest of his natural life as you are you know we have a three step program and he will graduate from that automatically read and that's the case your honor that that's what you are getting do i have to evidence was that correct it was a it was certainly in part incorrect but that just the gist of the evidence was there and i says but for a number of reasons first of all that the during the course instruction structure number two the court clearly instructed the jury that i remind you that statements arguments of counsel are not evidence we are to base your argument your decision only on the things that every trial ever travel in they always do but it again for which instruction number six that defines issues of future dangerousness it's a function not just of length of stay in the government relied upon and the jury found that as mr construction number six going with you crucial because it shows when you have this type of special person and evidence came as a silver silver some of them right when you have their you conceded that well that's a special case or why isn't this in a special case and we can show evidence records of all the assaultive conduct there will be other things and of course in any case the particular capital case issue of the what's an appropriate punishment is an individualized decision it so would we  go back and look at all the cases the host of case and say why is he not like silverstein why could he stepped out to someplace else why is he more like in may who might have been stepped down it involved a process that that is and there's no indication that that that that's where the lack of favorably would come into the length of stay i think your honor despite the argument about lying to stack i think we all agree that that the three experts all said that the length of stay is depends on the so they need you and everyone every single one of those drawers despite knowing that he would prompt and he would most likely to spend the rest of his life you know secure federal institution such as pat max likely to commit acts of violence against other inmates or staff so for at least nine of the twelve drawers b o p data but he would likely spend more than three years at florence ag max would not that's or try to make records something it's not a man would try to do that it was it was it was a poorly made argument but it was the jurors heard all the testimony of the three experts and b prisons has the ability they have the will to basically make this person can form make any make conform to two to the rules of behavior if you will within if you play on securely and securely house him and that is exactly what that at least manager is about if not the jurors found that it but they stat still was not enough to overcome the their decision that he was going to constitute a future danger because of the other factors they were identified  course and that was the not withstanding the the the closing arguments made by by counsel that is that was the evidence and the jury so found we the jury it in nine people under that suppressed lack of knowledge understood in that way when that was designed that way and that's why you said in closing argument he's going to be out in three years and nothing we can do about it that bec notwithstanding the argument of counsel the jury got it to be understood the evidence the jury understood everything about mr carro and in looking at the other factors that  is nothing more than a collection of data i think judge jones pointed out that this is something that if in fact was out there to exist at the time of the trial in two thousand and six two thousand and seven they knew they they made no effort to try to locate th judge jones said if he would give me there's a might have been forward my my decision concerning discovery but but the point of the matter is they get of the day the jurors by their verdict and on this finding this mitigator said length of so i think it's disingenuous for the government to make an argument that the jury had all the information it needed to sort this out the other thing is the jury instruction in the verdict mr karr was held in what was supposed to be a secure facility and he committed a homicide there these these institutions are not fungible a p x florence is a special unit they at the time of mr it what we know now from our you know from our very late evidence we got from the new mexico law firm and such fifty cases where your mates were in a wreck yard unrestricted the policy has since been changed but there were fifty four people who committed the murders that were housed there and there had been no their acts of violence are eighty x florence is the gold standard in terms of keeping people this we call it abuse of the writ and the abuse of the writ is to keep people from either sandbagging claims raising a claim in a in a proceeding that loses in the raising that by him again later or foregoing a claim and sandbagging you on secure facility you know we tell the jury that he uses a commonsense is a chore are you meant that when the juror looks at that secure facility they're secure doesn't mean anything to them because everybody knows every facility is secure so there's just a throwaway word that seems to be your argument that every facility is secure but doesn't in the context of this case i'm just wondering about your argument on that point doesn't i'm a get this straight you don't think a lay juror understands that every federal prison is secure so you don't need to put that word in front of it you think a lay jury thinks that they are not secure federal prisons that people can just secure but secure with the edge of have been used here it means something of the context in this case which is really really this secure place because the testimony was about forms you don't think the jury smart enough an average intentioned trying to do the right thing in the sentencing but i don't think they have enough information in front of them to know exactly what the circumstance might be all the discussion of superman they didn't make that seven invent your own and that was blunted by the testimony then i'll say this is well i'm not sure that the jury even after that discussion even putting apart the the testimony about three years i'm not sure of the the jury necessarily understood exactly what the  circumstance would be or again without this is the data that would support the proposition that eighty x would be a place where mr carro would be unlikely to be able to commit a violent act again that's that's the crux of the that the jury didn't have that information that would have fleshed out those details that we know he didn't have was information about how long the stay there correct but they but there was no indication that that's where he was necessarily going to end up that wasn't that wasn't something that the that the district court would impose but then it will be up on to hear this presumed in that inquiry of the jury in the context of this case judge duncan has exactly right there's an argument you're arguing about whether or not the testimony was that he would be in that secure facility forever but my question was isn't it relatively clear i think it is secure in that question mitch supermax and they they quite frankly i don't think they believe maybe they didn't believe the government attorney and maybe they answer this question in part of it the government know they the government was misrepresenting what the ins to the evidence to be but notwithstanding why they did it they indicated even if you were to be in the secure facility which i think is clear almost certainly clear they talked about supermax that is still didn't matter to there's discrepancies the government maybe should have argued that or misstated it but the question about what the jury understood thought about this person they presumed that even if he could stay there forever it was no show is just sole unravel and so ambiguous here is that they have to find secure has to be at least even if you're there you can be around fifteen people for example if you get stuck at three and never graduate but one proper discovers that some people never get past one which means no contact so even if you say secure then it's not enough detail in terms of discovery here whether people have to  allowed to get to two and three that's the that's the that's the intellectual dishonesty in problem with this case is that it's understood that well you've got to get security here but them wasn't know how the point is this the government could have kept him at step one was a special case but instead was told no there's nothing we can do he gets to this point and my correct that he get to to you what seven people you'd be around right you know you get to  so i was told i have to let them get their intel you allow discovery appropriately in terms of due process this say a person who i'm sure would have understood how could they understand that when evidence little is conflicting or how many people even in a secure place he would have that's why he said what this is secure we are looking at secure that's fifty people that could be at risk to him and they understood that i care about human beings whether it makes or not but if the truth is know we can keep him from about no human contact control i mean like marion type stuff you know six then that's a different matter and the truth comes out i have discovered in a case like th the evidence but no reason at all to defend and that is inconsistent with justice and not just the rush to kill i couldn't agree more with  we went back to the preacher there's a pretrial hearing where this first was discussed on november third two thousand and six where judge judge sergeant magistrate judge sergeant asked the government specifically isn't it true that if you had evidence that she used the words  reviewing the mental health report of the two government experts which were available under rule twelve point two c three they could have no stuff they were putting on had defense they could review the government's reports and then declined to put on  mental health evidence and kept it out the rule allows that there is no case parts of the contrary and i think mr mr carr was prejudiced by that as is that as well because he had organic brain damage he had that was diagnosed by two expert organic brain damage of course cognitive dysfunction that impaired his ability especially to think in and function under stressful circumstances and they having the inmate put in his cell at us peacefully after the prior day he declined the  explanation as to why the etiquette was being over over ruled in his particular case and again he's a guy that functions as a ten year old with regard to cognitive function and even lower when he's under stress and we w