may please the court the district court there in dismissing the indictment was prejudiced four days before trial the requisite progs of brady and gig leo weren't satisfied the court also abused its power by not only imposing a sanction that's reserved for extraordinary situations but by failing to consider the veriest elements and by failing to impose the least severe sanction at most this case is about an intentional discovery violation the late disclosure of six reports swenson's to testifying witnesses and for other people all of which were disclosed in plenty of time for trial for brady violation to occur three factors have to be present first the evidence has to be favorable here swanson's swenson's monk emery county police report regarding birthmother parker's fraud doesn't qualify as favorable irq sculpted tory what happened in that report was twenty some was reporting that parker was defrauding her but it was in relation to a completely different scheme a completely different fraud not the double matching that was charge here the police reports related to the non testifying individuals were relevant again unrelated frauds were reported in relation to the two testifying x x he's been testifying and vigils their statements were either consistent with the three o two that previously had been tendered or any inconsistency is were immaterial none of them negates swenson's intent in the case in this case here in relation to the wire and mail fraud counts charge here also none of them is favorable to her this particular brady product pronk highlights why a trial is necessary to even a valuable whether evidence is favorable when but when it's evaluated pretrial that really can't be done we can look at a document here we can look at a document here and say this is inconsistent this is inconsistent or what have you but brady that's not the examination of brady we have to hear what these particular witnesses say in relation to the other evidence of the case also as this part knows most brady cases involves disclosures during trial or even afterwards so and swensen here also can't satisfy the other two brady prongs first the government must have suppressed evidence the case law is clear however that once evidence is disclosed it's known longer suppressed even if that occurs during a trial defendant's like swenson have to show prejudiced but that does not occur are if the lawyers can use the materials effectively a trial and that was the case here in fact the objective evidence establishes she wasn't prejudice she already had her own report that she had made to montgomery county about the unrelated fraud she had the thing go to that had been tendered a long time ago moreover she owned the adoption agency and therefore had access control ownership of all the communications including with the birthmother and with the prospective parents she also had plenty of time to use this information especially when you compare it to this court's precedents and even if you look at the motion to dismiss hearing she's already doing that she's complaining there are various and consistencies and we're still pretrial moreover it's important to remember brady doesn't apply to information swenson already had or with reasonable diligence could have obtained brady doesn't also impose a duty to investigate moreover here what the district court did is he inserted himself into the government's investigation and swensen capitalized on it the record is replete that the government sees me that judge hughes was very very upset or of you know whatever that is just your court's interpretation however what the prosecutor did was go to the victims and get all of this all of the information all of the e mails in march of two thousand and fifteen i believe it was actually sixteen also the yahoo account and in march of two thousand and sixteen the prosecutor turned out of her also all of the e mails provided by the prospective parents and that your question your honor goes back to what i said that swenson own this particular adoption agency so she had all these e mails between herself and the proponent and the prospective parents also there's no the judge i mean excuse me what happened here is and if you look at some of the pleadings you'll see is there was a disagreement about whether some of the things have been produced the prosecutor produced many things in march of two thousand and sixteen when the f p g a would complain sometimes she would produce the same documents over again and one of the pleadings she even exceeds me the f a a q do you even recognizes that so to basically put certain information to bed if you will before trial a search warrant was done for the proposed victims of the proposed victims propose freaks prospective parents e mails account but the fact of the matter is that a f p d accused the accuse the a u s a of certain misconduct which just wasn't there to misconduct and that's not even the correct word is that the a usa completely forgot about th reports also she was getting ready for trial and therefore she was finding other documents other witnesses for those of you that have tried cases you know that that's always a frantic time trying to get ready finding additional things somebody saying i usa also believe that there are a lot of these documents had been produced at the time and it's important to remember that shortly three weeks between for a trial swenson produced close to nine thousand documents herself unlike civil cases where we often trade information away in advance and do depositions of what have you it's not uncommon in criminal cases not from that we're known from of you with criminal cases go ahead bill but i'm what i'm saying is she also many documents some of which were sixteen page statement from a victim i mean a dark areas takis documents to cheat tender i'm not certain of that i don't know if it's in the record and if if it is i apologize for not knowing but where was  data dump or not well i i think i would just agree the especially when we're saying she already had these documents to begin with many of these documents that's not to say that some new information wasn't produced what we did did reports and in order for her to to succeed on the second brady pronk she has to establish prejudice and there is no prejudice if it's used effectively a time and you know during the trial and this is this court precedents are very very clear that if there is enough time then the prejudice pong can't be a stopwatch and there also could have been a continuance absolutely and that goes certainly goes to the remedy or to the sanction here this were never there were reports about the prosecution yes and they were saying she needed more time to go through the evidence it was a document intensive case and that she was waiting on documents from third parties at no time  was the government implicated in that and also brady doesn't impose a duty to investigate upon the government and here as i said before the district court inserted itself into the investigation and picked colorful words like incompetence and document dump or things like i think that it's actually was the a f p days term but also under threat excuse me three thirty five hundred anyway we don't even have to produce certain witnesses statements until they're to they're testifying but of course we do as a matter of policy i'm sorry could be during trial the same solution before the actual testimony absolutely but we do it as a matter of cooperation and policy but the other thing is the evidence has to be material and what it that what that means is swenson's burnam was to establish that there was a reasonable probability the result would have dipped been different has to undermine confidence in the outcome as the supreme court recently said in turn or of the trial the mere possibility that something might help or affect the outcome is not enough for materiality in the constitutional cents also the court can't look at these documents in a vacuum you have to look at a collective lee and that's why the importance of a trial is important and here regardless of whether you find of brady violation even though the government certainly maintains that did not  going to dismiss this case with prejudice is a terrible terrible sanction particularly when we're talking about a discovery violation it was approximately ten days the case is missing both of the things that are required for that an extraordinary situation and a situation where the defendant as prejudiced as as you pointed out your honor the usa immediately and repeatedly took responsibility for the late disclosure she said she made a mistake and again it bears mentioning that not while it was timely swenson and also it's once an excuse me had produced approximately nine thousand documents three weeks before trial but the u s senate is mare or oversight doesn't equate to gross negligence or intentional misconduct and that weighs against a dismissal with prejudice the error here was compound to because court never seriously considered the requisite factors and the court also failed to impose the least severe sanction it didn't analyze what counts in the indictment were allegedly impacted whether any could didn't look at any type of sanctions including a very short continuance and i said during the motion to dismiss hearing it was very clear that the a f p do was pretty up to speed already on these six reports which were disclosed on a friday and the hearing was on a monday and they say well the you know the government to respond but again the timing was so short on the sets they also just going back to what we talked about earlier what the record shows here is that the got the district court was intent on but punishing the government there's no question there it became very personal made all types of disparaging statements about disclosure and then rather rather than advancing justice or considering a lexus extreme sanction and of course it's also important to remember here the victims were punished and these people had already been suffered both emotionally and physically based on along the facts the district court misconstrued and misapplied brady and exceeded its powers this court should remand to a different court as possible where a fair trial can be fully supported by the evidence and the government is not showing the court's findings of fact or credibility choices are clearly erroneous or that the court abused its discretion you know that well in exercising in exercising his discretion judge hughes one little bit further than that didn't he criticized the prosecutor because she was female you know he didn't your honor well here's what he said well what we're hearing here here's what he said and you can correct me if this is not in the record he said quote it was a lot simpler when you guys wore dark suits white shirts and navy ties we didn't let girls do it in the old days close quote is that in the record it's in the record but he didn't say it to the prosecutor that the government uses an ellipsis to make it seem like he said it to the prosecutor let's back up before we impugn the integrity of a federal district judge let's do two things let's look at the context and let's think about where you put that in the context can i have a hard time finding a context in which it would be appropriate for a federal district judge to say that it makes a difference whether whether an attorney is male or female i'd be happy to first of all i wasn't talking to the attorney he was talking to federal agents in the courtroom who are on identified you have to start a page for zero nine there were federal agents you started page four zero nine not page for twelve where the government did and when you started page four  nine the court asked about a report and then the prosecutor turns to someone and then the court says who are those gentlemen this is on page four anon and when  are those gentlemen the prosecutor says oh they're federal agents then we get three pages of discussion and then the court asks about report a report again and then the case agent not the  he says and then the case aging answers obviously he wasn't talking to the prosecutor nor could he be because he would recognize a prosecutor he wouldn't say it was easier to recognize you in the old days what the word for that well he's talking about the old days why do we think he's not talking about how unjust it was in the old days why do we think he's talking about why it's just now we have the contacts where they haven't ide d federal agents we have the contacts where he's talking about reports why do we assume a federal judge is being unjust rather than talking about the old days when it was unjust there's nothing there where he says i don't know who the other people were you here said the case agent who speaks up is a female so i mean this is the problem with the government saying things on a cold record where we're supposed to interpret we're supposed to think about what the prosecutors face was what who judge hughes was looking at what he whether he was smiling whether it was founding we don't know we can't just pick this out of a cold record and that's the problem with what the government's doing with the rest of the case to have any authority for a case being dismissed for an alleged pretrial brady violation rather than just being continued other governments misconduct here i mean the government sat out about the fact that they've been given for the defendant had been given for continuances right which continued it is not the government's fault the defendant wasn't incarcerated big  government great there were continuances and the government had four years to get the information to the defense the other thing i think the court doesn't realise is you need to look at the emails that the government produced the government can get  them to pick out whatever they wanted to pick out and when you look through the e mails and your honor the e mails a document dump you are referring to that is in the record it's defendant's exhibit one through three and i encourage you to look through those emails because when you look through those emails you will see that and this is the bottom line of the case you can't put humpty dumpty back together again those emails are copied over and over some emails are on a page alone then there's the same email with other me emails on the same page the this stephanie mans i mean the government doesn't talk about the e mails the stephanie mass show that responses and other e mails with them are missing it says right on the page quoted text hidden which as i understand it means they're related e mails are gone and when the governor corbett asked about that what is quoted text hidden me the government didn't even respond there the defense counsel said i want to know what cortex hidden means the court said i want to know what cortex it means the government in the responded didn't say anything so so those are the stephanie e mails with all with quoted text hidden all those e mails missing that are related then we go on to the riser e mails the riser e mails has a letter in them from a surprise or wish in her letter she says the repetitive and hard to find out follow their copied over and over and they have e mails in a different form some of the same e mails later in different font they're all mixed up i encourage you to look at the e mails this is a case by the way where the government saying that in this one thing didn't respond to the people that she misled the people that are contacts were deceptive so the government lets staff in pick out her own e mails with quoted text hidden so we don't know what the e mails are around that she lets riser pick out her own e mails where they accompany e mails or all mixed up and sometimes appear in one font and sometimes appear in another we have a kneejerk e mails where they actually say on them quote you move this message to a different location or to this location showing that the e mails have been moved and the basics there's no way for miss winson to recover those e mails the government gave the judge's bogus excuse of oh it was a dot org account so we had no way to subpoena it before it was destroyed by the company well we all know that all you need to do is look at the header on e mails and you see where they came from you see the domain name i mean holy moly don't tell terrorists at all they need to use a dot org account and then the f b i can't find it we know that's not true so i mean this is it starts there and so you start with the fact that the emails are mixed up are missing information are in different the things that into evidence but that that was short cut by the fact that the case are dismissed rather than continued and then you go to trial and you thought your objection then the judge rules if it's not relevant or it's overly prejudicial but nobody had that opportunity because you threw the case out with prejudice well you could file a motion to do that or you could file a motion to dismiss given the government's repeated misconduct they repeat a faucet the produce any authority for that where a judge would dismiss a prosecutorial what you call misconduct before trial if yes i mean if the defendant can't you have a case that says i don't have a case but we do have bracton we do have cup cubit where it trial straight you can have a trial because it's no longer a reliable form for guilt or innocence it's not what the founders wanted it's not aiming quiz atory or prosecution like this one became and don't forget the government's misconduct they produced an f b i three o two that was false by omission it left out all of the contacts in september and october of two thousand and thirteen for mr that were in message on those once they're caught says oh well you know about these should we even turn over the other ones then they told the court in open court that this case case had nothing to do with phone records when the indictment mentions phone calls they told the court at least three times they are abiding by their discovery obligation when they had those reports for three years and hand turn them over the phone calls in reference to the allegation  so to say that phone records have nothing to do with this is just wrong i mean at least you'd expect the prosecutors say yes your honor the indictment talks about not calling back but they said no that has nothing to do with this case  they repeatedly violated the court's discovery deadline they told the court as i said this is pearl dot org he couldn't be subpoenaed and the evidence was called the tory that they that they suppressed statement shows numerous contacts with smith's once in the birthmother the riser e mail shows the numerous contacts or the miss riser contacts with brandi the birth mother the e mails show the m excuses about paying her fees which was a defense that she was cut off because she couldn't pay or fees which this information and not in the possession also of the defense are reasonably available to the defense well this is i mean that's part of the test under brady right the statement i mean we didn't have that information what i'm talking about is exhibits one through three where the dutch government produced that folder and i think it twenty fourth teen or twenty thirty so that was all information that was given the government that that the defense didn't have they may have had some of those e mails i don't know but i think they didn't have a statement and by the way when we ask about that that's a good question because the government has the burden to show the court's findings were clearly erroneous what in the government's brief says oh no look at this e mail look at this e mail look at this e mail they hide it or it doesn't say that word doesn't say the government's brief and its argument doesn't even deal with emails they only even talk about hidden quote hidden text omitted they'll even talk about the mixed up emails so i mean all they say is they want to come in here and say well this is about role sixteen and we failed to produce one really you know one or two reports and so the judge wasn't you know this wasn't right wrong this is about the government allowing witnesses pick their own evidence it's about not protests producing discovery over and over and over and it's about don't forget the judge seeing that the government was never going to do that was never going to abide by its brady via brady obligation because in the motion to dismiss hearing don't forget after all this is going on the agent is standing there with a file that has not yet been produced because it was too big and they're going to produce it to the defense and the judge says have you reviewed ask the prosecutor had you reviewed the police report in that file meaning have you abide by your brady obligation and what is the prosecutor say oh no your honor i have my own theory of the case and i'm doing my own investigation and the judge responds what else is it that you haven't reviewed or you think you don't need to review after all of this after a prosecutor understood her obligations this prosecutor didn't even look at the report to see if there was brady violation so in the end after all this misconduct if her evidence that has prohibited miss munson from defending herself after all of us the prosecutors  essence saying i don't need you back we don't need to abide by that obligation i know how to try the case judge i know what i'm doing i don't need to look at any police report your honour's the government has not high burden the government's coming in here saying all kinds of statements that like this once and have this information through nothing in the breeze that shows that there's nothing in the record that shows that and we know that the science pro account was destroyed because the government even admitted that case should result in a two sentence opinion first sentence the district courts the government has not met its burden to show that the district court's findings of fact are clearly erroneous or that the court i understand is the position of the federal public defender and marjorie myers in southern district of texas if there was absolutely nothing inappropriate in judge hears his comments which included the comment quote we didn't let girls do it in the old days are you saying that there's absolutely nothing that should trouble us are that troubles you is the federal public defender about that comment in open court my position your honor i will outweigh you know you represent marjorie marsh and you know you're on i represent miss mines and i don't represent market you tell me what the position is of the federal public defender in the southern district of texas on whether this is inappropriate coming from one of the judges in your and your locale put our position the office position the swinton's position is that you can't tell you can't tell because you weren't there he didn't see the expression on his face he didn't see who he was looking at you don't know if he was referring to history that's why we had district court judges and so to pick out the government's interpretation without being there on a cold record is just something we can't do you think it matters to the  female prosecutor or to the female agent you seem to be trying to allege that he was speaking to the female agent not the process you think that's all right i don't know who you were speaking to your honor i'd be there one your honor i don't know what he was doing i wasn't there he said we didn't do this in the old days they didn't let women do this in the old days i don't know if that was a historical statement i don't know if that was mean derogatory he said we didn't let girls do it in the old days that's a disparaging comment that's as bad as as a disparaging racial comment to refer to a females or women as girls that i agree with your honor ellipse is that the government used to say that he was talking to the prosecutor well we can certainly look at times what three or four pages to get together and if we will certainly do that but i just find it hard to believe that you in your office aren't aren't willing to stand here and tell us that we should be troubled by the way the and that the judge made a careful distinction between men and women whether they're investigators or are or prosecutors i'm not defending your honor and i'm not saying what he said was right i'm saying we're not we weren't there i don't agree with you that there were girls derogatory court reporter was there well i think the court talks about the cold record all the time i gree with the judge that girls as derogatory that clearly erroneous standard on the on the findings that that are made that's part of what we do i agree with that but i'm talking about going into the weeds if you will with the documents where's that that belongs to the province of the jury whether something is inconsistent or what have you and you really can't make that determination without the witnesses testifying at trial judge clement you asked about cases where case cases where court dismissed cases without prejudice and on pages you mean with prejudice and signed with prejudice on pages forty six and forty seven of the government's brief eleven we talked about how the eleventh circuit relied on this court's opinion and mckinney  refusing to find a brady violation where a defendant was never convicted and didn't suffer the effects of an unfair trial and i also cited the ninth circuit opinion where it talks about other circuits who have a employed that same type  four ninety two of the record which actually are contained in the excerpts of the record excerpts that i filed and that talks about what happened in this march third two thousand and sixteen conference with the  and then what e mails were produced around january twenty third also it's important to note that wall yes there are exhibits that were tendered by both sides that are contained in the strike heard not all discover is filed in the southern district of texas and both sides and met there are thousands of documents so there there's a lot of information in this court doesn't have access to i don't have access to in the making in making all these evaluations and again i think it's important to stress that swenson herself as the owner of sands perianal had access to all of the e mails and texts and things of that nature that transpired between her and the birthmothers and the that the defense didn't have access to the interview he was he was reading from the i again i don't have i can't say that that's one hundred percent accurate because i don't have the universe of documents and as as one of the things they have p d filed said they thought these documents were new where is the a usa had represented that she had already produced them and i think that as he sent her actually in this case as she said she said highlights the reason why you go to trial in these situations is that you can ferret all this stuff out is it favorable is it material is it whatever the term prodding i so you can make those types of evaluations even a short continuance here would be helpful because what you have to remember is that document dump that you talked about judge him by them in relation to their fifth most from for continuance that motion was withdrawn they wanted to go to trial and the motion to dismiss was about the six reports so once all of this discovery was tender excuse me and they were complaining and reverse the district court or thank you mr west in your case gender submission next case