strictly speaking there is never a real pretty violation unless you can be shown that the nondisclosure that there's a reason probability that the ny disclosure of the evidence would have made a difference critical when they decide to put nickel on to testify about this phone summary which was inaccurate because it would have the jury and the jury didn't believe that the first call was made by chases and the first false may sometime april first the case if i don't need your help what i need your help with is what is the case that you want to make for your client where is the evidence where is the piece of paper that you can point to see if we've had the subtile here's how i would have used it prepared to present it now as far as i know it doesn't exist how in god's earth do you expect us to find prejudice here or how do you look to be more specific counsel how on god's earth to expect us to reverse as an abuse of discretion found a lack of a prejudice i know i'm willing to look i'm willing to consider those i'm sure my colleagues are but you can't present us facts you can present or something more than you know we could have done job should have had the declarations that were filed by defense counsel after trial that ed also the decoration of the government after a trial that showed the additional phone calls in  think that the discovery of this post conviction which i think i can also safely say the district court realized there was a problem by the orders that it imposed upon the government to produce these additional phone numbers if ever that trial know you disagree with me are you arguing with me voice mails yes or no i think a text message is probably going to show up you know probably is not good enough so so so so so so voicemail messages would come in would be on this vote right so so the universe of calls except for text messages that he could have gotten from hernandez all have to be on this bill which is which is qualify for that for that treatment and then let's see which ones of those you could not have figured out or counsel have of them before the trial could not have figured out before trial he can pretty much useless his best friends and his colleagues buddies and things of that sort of recognizes those numbers and that would leave a certain series of numbers that he could say gee i want to believe you but you're giving me nothing to help me do that if this evidence is somewhere in the record you have managed to hide it from the three people in the world who can help you find when i asked the co whatever happened there was going to be would have to happen before so somehow you have to say well cause after what somehow tend to prove some relation back and happened to have before well that's justice not to beat a dead horse but the trial court said defendant's own test of testimony quote buried close quote him with a footnote after the jury returned its very the court characterized defend testimony is utterly lacking in credibility the course of this was a plausible highlight of my cross examination if the court has sat there said this is ridiculous that this is going to have made a difference well  he's the court you know on our time behalf of the united states hi let me begin by saying my concerns the fine i don't see that the court considered any of the thirty five seventy two factors and you are correct that there is no i'm completely out of the blue and we all support it i mean you're not going to support the fine i you are what what i would argue is this is the basis upon which the district court's findings could be supported you may don't have to defend everything no matter how foolish your honor i i will certainly take that up with my superiors i you think this is the i think that i can present what was before the district court that could support this fine had he used to support a fine which he didn't well this court has never required that a district judge so that's fourth explicitly considerations of the final factors and the court has also found that in other situations involving restitution as well as in the court also had other information for it that would support the fine courts and say that's why i'm doing it and wasn't required to if that's if that's your problem it seems to me callous or he wasn't required to the problem is he  d the male judge the trial court did find that that was the basis and so we're stuck with the record that we can't apply the usual presumption that the judge considered all the evidence that was before the judge when the judge tells us why that judges make the decision and isn't that the problem you've got here and if that's the way the records to be read then i would agree that that's fine it's not supportable but there was evidence before the court which could support the find and that was that was evidence that the pre sentence report which the district court had read contained information about this defendant showing that he had a great deal of education he had a college degree he had run his own business he had a number of different skills he was a building manager for his mothers a supervisor and the front office and said given these allegations it ignored senator it appears that this is the type this case where somebody else from the office should thoroughly review the record and  through what was presented at trial is and what exactly was presented after trials and in the court to make that determination i'm a bit of a visual thinker so i am looking fifty five the government's excerpts of record summary of exhibits thirty eight that was actually an exhibit at trial that summarized the phone records that were admitted at trial these phone records consisted of defen exhibit one o two which were defendant's cell phone records going back to december eighth of oh three which is about three months before this transaction began and some of those records are included  defense actually introduced the defense actually had as a defense exhibit the defendant's phone records going from december eighth through the beginning of march it was his our clothes were his own phone records he had up to the beginning of march ok the government introduced phone records that went from the beginning you know from the from that end date through the time of the transaction and that evidence which is government exhibit thirty eight was actually introduced not in the government's case in chief but during the defense case when the defense called detective nick so if you want to go back and check to see if this is accurate you know what your point the point that i want to make is that the new macedonians did not show any new call what that shows on page three o two is as judge matsch describing his order there were thirteen i dish you know on the answer calls between april ninth and april fourteenth from hernandez that's the totality eight of those calls occurred on april thirteenth between basically the hours of three and four pm there was testimony at trial that is actually our sixty nine nine hundred seventy where the case the agent testified that on that date the c i last several voice mails for the defendant on that date so that evidence that there were voice mails was already before the jury at trial and i would argue that that diminishes even questions first of all to clarify the record what was disclosed prior to trial and i don't think there's any dispute about this that most of the phone calls took place on april thirteenth and well you know the defense had an opportunity to question the informant and camera and you know that part of the transcript is sealed so we don't know what transpired bike you know clearly if there was if there was some issue here  beyond what is it now in the record i think we would have heard about it i don't think that the informant was incorrect about what he used the informant stated that he had to telephone lines that he used and those were in fact the two precisely what you walk into because you know that brady is going to just come up with capital letters b r e d y and if you're not really really careful you get run over by the truck and that's what we got here and usa got run over by the truck the case has been battered states attorney read this brief the chief of the criminal division read this brief they're strictly aware of the prosecutor's contact the issue before this court is whether the conduct prejudiced the defendant and they are also aware that you know clearly people need to be trained to do things properly and this prosecutor did not do things properly and it is not how people are training i am not here to defend this prosecutor's conduct our office is not here to defend this prosecutor's conduct we only theories are telling us is when she came down and said i want to go to trial she had not checked with anybody in office supervisor or anybody like that and so nobody had a chance to time a woman and you don't go to the car you don't put defense counsel in the position i'm going supplemental numbers in its possession at any time before or during trial well i think what the record clearly shows is that neither party had the cia's phone records prior to trial there is no discovery i d s dates which summarized the telephone calls on the thirteenth and fourteenth what what part of the phone record was not a chain was part sure what the jury assumes and that the government presence is a summary of this is the only thing i'm sorry i don't understand the question but the question is that if the government represented to the defendant that they were going to present a summary of the phone records between the informant and the defendant that the government had all of those records in order to summarize them isn't that through the records for those two days for the thirteenth and the fourteenth and the defense did not request those records specifically the actual phone records until the first or second day of trial and there is you know i would submit that those phone records are not that she has a phone number exactly the same way they found out that the d n a line from which the informant called and made a recorded call was not of the last number because they went into reverse phone search put in the phone number and it came back to the d a s office so they have counsel when you've been told when we counsel has been told in that there's that the government and the court has been told that you're going to put in a summary of the relevant phone conversations that doesn't seem to me to be noticed that the fender has got to subpoena the stuff that you say you  that prosecution says it isn't isn't that the problem here though i think the problem is that there were other records that they wanted to use to impeach the records that we have and that is their right to do and they can go ahead and subpoena those records and if they wanted to call mr sheller as a witness to say that the informant made a number of many phone calls to me prior to march twenty fourth they could have called him to do that they didn't need the government to i think what your honor is getting to you and i agree this is not the way this case it should have been prosecuted but ultimately what this court has to decide instead the district court here when it concluded that the defendant was not prejudice in a manner that warrants a new trial and the district court here was privy to all of the defendants failing to all of the prosecutors failings to the defendant's testimony and went through with a fine tooth comb all of the information that was prevented after a trial which showed that there were thirteen additional phone calls which show that the d n a line was not a blocked number and would show that there were a total of four text messag so it was one of those are the records of the da undercover line that were used to make the recorded colleagues if they ate at trial these are all the calls made from the full well during that relevant time period so it was not used to call anybody that this is the bill and this is what some of these were calls to other people there are two calls to chase it on for twenty six and for twenty nine one of those calls before twenty six car was introduced to trial that know the dates that are listed there it looks like it's four twenty six to revise the period that the actual seizure was in the fourteenth correct so we have anything in only he records were provided in camera to the district court and i personally did not review them the the prosecutor who handled the case reviewed them and these were the only ca ok and i just want to get back to one question that you are asked and again i am not here to defend the manner in which this case was prosecuted but the district court who was  i'm forty four and ultimately the question is why is the defendant prejudiced and the bottom line is that we still have not heard and these records do not show any evidence that really undermines or undercuts the entrapment defense because we have not seen that there was any calls for contact prior to march twenty fourth which is the date on which about that is that obviously the first seven every phone calls look to be changes to the source of the drugs in l a if counsel had been given enough time to review these with their client they could have establish