right have it please the court my name is richard hammer i'd like to tackle an important issue on this appeal first which is why all of these sanctions and the trial that we would have had the opportunities that were lost if the government would have provided us with all of the disclosure three weeks before trial started as ordered by the court and in the trial that should have taken place we would have been able to use this information to investigate prepare and present the best defense that we could have had for example we would have opened not eight weeks after the first witnesses called but before the first witnesses called and in that opening and in please understand that much of the best impeachment was disclosed not in the first week or two weeks the first wave but seven weeks into this jury trial and that wave consisted of the most fertile impeachment of john ty the star witness and his wife and as an example in the opening statement instead of giving a generic the government is going to prove this they're not going to prove that which is what i gave you started out on the elmo with these coded e mails between the lead agent and the star witness and the jury starts getting the impression well this john tie has a lot of influence in this case and then in that opening statement that is a directed opening statement you explain that when defendant loisa lisa was arrested he wasn't taken before the magistrate first he wasn't allowed to speak with an attorney he went directly to john t and with some bear hugs and samoan thirty minutes later he was converted as a government witness and and from there in  the directed opening statement john ty had twenty two briefings with the government jun tie was actually making a movie at the time and hired a director out on the outside as we're starting to get ready to attack the audio video crucial we didn't know this till the seventh week but the wife of john tai who made the video and have this bug on her lapel and jun ty were given an operational meaning to propel the strategy of the government and parading was lying to the governor and he and his wife were still dealing and at the end of that opening statement you say and our defense is that john tie framed mr dooming this is spear of influence was so great and many of the accomplices when they were first interviewed never mentioned mr dooming this you know maybe one of them believe his lawyer to leah mention didn't mention in the first five times but only the witnesses when they're being interviewed by the government or when they're being interviewed and in the this when he made his first honest statement so there is that motive means that opportunity for somebody as svengali and persuasive he's a legend rap songs were written about him to him and the agent says this is one of the two smartest informants or or witnesses or accomplice that we've ever worked with so it wasn't out of the realm of possibility to influence now after a real opening statement which cases say a very important and complex case we go to cross examination the first witness is the lead agency chambers and rather than being cross examined with this incredible information that he participated in violating rules of the bureau of prison with these coded e mails he basically skates by and six weeks later we're allowed to cross examine him so it's you know the government always wants to start with their right foot forward in the lead agent and he did just fine but he wouldn't have done fine if the government would have given us the impeachment after that every witness that's called by the government instead of this gather show generic cross examination it's all pointed towards the defense which the jury is clued in on that is the john tie  and learned this it's not like we failed in our investigation but once we know this we're able to subpoena to go inside the jail who  with talk to people see what was what was said what was done the journals seven journals that he wrote that we never got to see maybe they would have been available our judge would have been much more amenable to granting motions such as john ties jailhouse records which which could have shown a pattern if i had something to work with when we got to closing argument i had two arguments to the jury one the most pathetic argument a defense lawyer can make that's a jury pardon and the second was there's a failure of proof but still  we have juries that are out a day or so and in in this circuit when we have a jury have two weeks of that argued that the sanctions cause that success but one could also argue that's somewhat speculative and if if a directed defense investigate have the scene stay on message and in argue your theory of the case which is almost structural in the ninth circuit the ninth circuit actually did rule that if there was a case where a defendant wanted to argue alternative theories was nigh by the district judge in the ninth circuit said that's true you know you have to show harmless errors unfortunately supreme court didn't agree but that's how highly in the steam the ninth circuit holds your theory i didn't have the opportunity to argue the theory of the case that i submitted because  ere was i think two weeks of deliberations very long till the liberation here and it seems to me that one of your very most persuasive arguments is that the jury has heard so much evidence prejudicial to your client and it's very tough to unring that  they did acquit on several charges and the deliberated a long time and it seems to me to be a reasonable inference that that's consistent with parsing through the evidence carefully to follow the judge's instructions about what evidence they were not to consider  i agree but in that's why i thought it would be most illuminating for this panel to compare would you rather would you rather be given all this discovery three weeks ahead of time or be in the same sions position where you're hoping the jury's going to punish the government and there's not a legal kristi's there's not a professor an expert that doesn't say in the in the books investigate your case prepare your case and stay on theme with one defense don't be the scatter gun approach to things the other the other thing besides but to finish that thought your scheme was that this was john tie setting your client up essentially and convincing other folks to testify against him and how was that seen the real well that thing was derailed because i couldn't investigate this this information that came to us improperly in the seventh week i was unable to open with it which is an important right it was unable to cross with it  and i think you were able to cross with it you some of these witnesses were called back and you were allowed to cross with it so put up but not with the information that that we that was given in the seventh week john ty was was already struck as a witness and it just in others we just weren't on theme and we were directed in the answer to judge question is if if the trial with all of the discovery is according to any legal scholar is the better way  and we would have improved upon winning thirteen out of eighteen counts i just see that as the jury having doubts in the jury on the day before  were speculating that i don't i think you have to go with what a reasonable defendant would make sense to us as litigants would defense we'd rather present and we're we're misconduct and make it a fair trial and even with the sanctions the federal rules of criminal procedure has in order we're just so discombobulated everything was out of order that that wasn't cured it just the sanctions were willing tended but they didn't they didn't present with the mr domingo's with with his best sense i want to speak for short time and flagrant c and that is it's difficult for the district judges to find flagrant c as the courts have have written rarely are intentional violations to be the surface with a blizzard of papers and motions it's tough to see the forest through the trees and district judges have expressed their reluctant tendency is to trust the federal prosecutors and i think if we looked at this subjectively in in five ways were there are safeguards the amount in types of violations didn't relate to the essential proof was there when it all cost philosophy and was the government which is very important forthright to the court and the testimony was there was no instruction to to document impeachment on the accomplice pre sentence reports the government's policies we don't submit those in camera as far as being judicious in looking at the tie e mails the government was sitting on a ton of impeachment and just argued mr hammers on a fishing trip and allowed john ty to go back that night and do what he wanted with the five years i mean they wouldn't even look at it or preserve it  the vast amount thousands of items it's just not by accident and why did all this this impeachment really hated to lead agents star witness and fo accomplishments everything was important the government was was not disclose it put out all these witnesses and we didn't have the impeachment the window you haven't seen it ok i will give you a couple minutes i appreciate the time comes when i hear from the government they please the court james pierce from the criminal division appellate section for the united states the district court was harsh but fair when it described the government's discovery practices sloppy inexcusably tardy and almost grossly negligen item and generally i'm sorry i've been generous she said she was harsh but fair and i'm suggesting she may have been generous counsel i think that's that's fair judge kristin the the government's violations in this case were manifold and i'm not up here to defend instances on direct the usa had made clear that there was cooperation happening now we're not going to go down that hill i don't think right because you know that we've read that record very very carefully certainly are that's not a contested issue isn't no and let's be clear there are let me be clear there are four parts to this to the dismissal in korea that this court looks at were there violations were those violations the product of flagrant misbehavior by the government did that flagrant that step two did that flagrant substantially prejudice the defendant step three and then finally were there alternative measures that could have cured the prejudice or did for the prejudice short of dismissal and i think we're all the way up to the last question and i'm happy to address that i would disagree your honor as to step to the district court in multiple occasions and the district court who was overseeing the entire trial made a couple of factual findings in this court and chapman said of course that factual findings are reviewed for clear error that the prosecutor was not acting flagrantly now again i'm not up here for us to unring that bell it's really tough for us to roll back the clock because these discovery violations were all known to the district court at one time that mr dominguez joined in and put in some substance to the substance subsequent ones of pardon me that he did not and in all instances the district court said the same language grossly negligent but not flagrant and i think the difference is when you look at a case like chapman in chapman says reckless disregard for constitutional obligation gets you into that flagrant see box as well the the a usa who is no longer with the department at this point the enough you're out of this court's cases don't suggest that hiding the ball is enough some of the discovery related motions for a motion to dismiss a motion to dismiss that you have to get through that flagrant see question and yes failing to turn over this copious amount of information regardless of how busy you are is the usa suggested in the affidavit that's negligent grossly negligent but there's nothing to suggest that it's not willful and whether or not the affirmative misrepresentations that yes i've done that  at all possible it's an enormous use of resources of the court the united states the defense but doesn't defense counsel have a really good point that says hey look if i get all this stuff in the way it's supposed to be given to me i've got a different opening and i get to get my opening on time i get to get my opening at the opening of the trial sort of halfway through the trial i get to approach witnesses differently maybe some witnesses if if if they know that if the government knows i've got this then you know ties testimony either doesn't come in or comes in a far more limited sense i've got cross examination and now live up i've heard tie and yes it is testimony is now going to be excluded but they've heard everything the jury's heard all i think that's a fair point but i also think that the district court sanctions provided essentially that hypothetical trial that mr hammer has presented or suggested would have taken place in the absence and here's why not only were there second opening statements albeit not at the beginning of trial but the district court on more than one occasion instructed the jury and said we are taking in one case we are taking a break because the government failed to comply with its discovery obligations we are recalling these witnesses jordan for nazi got to live because the government didn't comply with this discovery obligations when mr hammer and some of the other co defendants counsel got up and made their arguments in the second openings which the district court probably fairly characterized as essentially closing arguments they were focused on precisely the types of things that mr hemmer has identified here the kinds of problems with the government's discovery and handling of the case and look at all the problems that the that the government passed that's the type of sanction and of course network that sanctions question essentially did the sanctions sure the prejudice to be clear on on the on point three i'm not going to fight the fact that there was substantial prejudice to the defendants i think that's a that's a fair point this record did never say substantial prejudice but there was a lot of prejudice and that's not worth disagreeing about but those sanctions that allowed for that argument to be made that recall the witnesses subjected to cross examination told to the jury by the way this is because of the government's failings that provided the type of curative measure that keeps this case within the the larger question of whether the district court abused its discretion in not dismissing the indictment which of course is the but the district court imposed these options these sanctions appropriately to the type of violations as more information about john ty came out she then ultimately struck the testimony into the the court colloquy earlier to jur acquittal and in fact back up a little bit before the jury's acquittal the government's acquiescence on counts two to five and seven to ten in combination with the jury's acquittals on counts six eleven twelve and thirteen are strong indication we don't know where we speculated with the jury but strong indication that not only were the sanctions effective but the jury listened to the judge's instructions followed the on ties testimony essential to the to the council which  mr dominguez was convicted which he was convicted no there was some relevance to it but it was not essential so count one is the conspiracy count and there is a lot of other evidence from witnesses about whom there is no discovery objection whatsoever fourteen through seventeen the primary evidence from that came from larry charles there a chunk was at one point sort of the the primary underling to john ty and why and he testifies about the specific dates and the as well who has none of the why connections he came to hawaii that he as he testified he wanted to make his earlier and he served as a career going back and forth that's most relevant to count one the conspiracy count now  opportunity to ask additional questions to make a record about is there possible rule sixteen or janks for gig leo information in these journals and there were no questions asked at that point and instead there followed a motion saying we just want the journals and in fact only saying we just want the journals but foreswearing any type of in camera review which sort of follows this court's precedent i agree that there's not a strong journal argument but let's back up a little bit please me because it seems to me there's another problem that defense counsel has fairly raised and that is not only that there were a lot of violations but there was it's just the sheer bulk of the evidence what he's arguing in part is that they were discombobulated it takes a while to sift and for work and some of these messages were coded and they didn't have a some substantial time for for review of that material but really the sanction as a for john time was the striking of the testimony after you testified but again the the degenerates verdict indicator certainly strongly suggests that the the bigger prize is i think your honor put it was the was the acquittal on those counts as opposed to the opportunity to push this as the primary theory of the case what think government incentives to play by the rules next time counsel  is the government wins anyway they broke the rules flagrantly perhaps in his in his words he would certainly want to find that and that's a quote unquote one anyway what about that this is not investigation here and i have to be somewhat careful about privacy concerns what i can represent to the court is that opi are conducted it's an investigation and to conclude it without making a finding because mr tight has left at that point in time i'm sorry he's very serious violations we recognize it's just a court referred this to the office of professional responsibility of course that's going to be a bit of a black box for us and i imagine appropriately so and then he's on the briefs so it does look like business as usual  i'm not sure perhaps it does in terms of how it appears but let me let me and the reason that matters is because we have to be very concerned that the government's going to do this again and that's why i'm looking for counsel them walked out with an acquittal on all time counts and up hung jury as to another this is not a case where the government the case government considers a victory there's not only the deterrence as to the first chair usa there is also the war ger  domingo's well the evidence at trial evidence about which there has been no argument as to its discovery some of the things i mentioned earlier with anthony early on and with the full amount to say that was strong evidence on  counts for which he was convicted i see my time as a manic one brief point an incident which covered thank you i just want to also make clear to the court that this is a set of discovery violations that the u s attorney's office is taken seriously and that the government takes seriously shortly after the case to go to the u s attorney's office conducted discovery transports prosecutor invited the national criminal discovery director who's in the deputy attorney general's office out to do trainings for the prosecutors to do trainings for the federal investigative agencies this is not something that the government takes lightly and for those reasons we would ask that the court affirm the district court's decision below thank you shasta mr hammer you may have two minutes  when he was struck it helped the other were the only hispanic john ty as a blood brother in the case and the samoans like defendants are kind of worshiped him when he was struck he was used to authentic kate the voices are in critical tapes for the other defendants who got rule twenty nine sprint i mean that's they walked out of there john arrested there was no search of his home his car his business there was no surveillance on mr dimming because they just didn't do the job there was nothing nothing nothing in the evidence there was no forensic  problem isn't that it is but it also holds that's a whole different inquiry from the line that you've been arguing for well only to the extent that the case isn't answering a judge christians question that the case wasn't that strong it was about the videotape and coring the alaska case for congressman is the best case for us because the judge said way  said these violations are horrible they related to senator stevens case but these audio videos are so strong the seventeen thousand this net the ninth circuit  chief judge thomas writing the decision said well these audience videos are strong but still we're going to find prejudice i mean if there's one case that could help mr d most on the nub issue of whether the saying sions were sufficient it's cory i mean it's it's so chilling when you look at the audi you videos in the ninth circuit saying