little i would like to go over some of them are selling facts in this case because i do believe that this case this case is a factually intensive case very briefly in february two thousand and three and individual was apprehended after a high speed chase around the federal building over in golden gate the officers involved are federal protective service officers who have limited memorandum of understanding with san francisco police department which is important later on as i get through the facts in particular mr jackson is a criminal or was a criminal investigator for the federal protective service and he was assigned to investigate the peachtree prosecution and that is the the individual who was apprehended he was not assigned to investigate the actual officers and to determine the propriety of their actions  during the course of mr jackson's investigation he and others uncovered discrepancies between what the officer said about your stiction and what and what they believed in fact occurred and that is video surveillance camera indicated that the chase and in connection to their own initial investigation are statements he brought this to the attention of this appears he also brought this to the attention the u s attorney's office within several days in fact the same day part of the same day attorney received the information regarding the discrepancy and the video surveillance in particular the u s attorney's office dismissed the charges against the individual the salem and released him from custody based on mr jackson investigation that day his report was concluded as are as a report of an investigation was concluded and signed off by a supervisor during the course of the investigation on the last day the twentieth one of the officers time he also attempted to recant to michael conrad who is also criminal investigator and mr jackson superior and mr conrad said you can't recount to me because there are certain rules in effect and this was testified to through a report through the government's own witnesses the f b i agent and the case agent who said that when they took the statement several about a year later from mr conrad he admitted that requires us to review the evidence in the light most favorable to the government and determining whether there is sufficient evidence to convict her of the rule twenty nine for purposes r well there was there is no proof that mr there was no evidence presented nor did they contradict the defense's theory that mr jackson was following reasonable policies and procedures and we in region nine when he didn't include the taking his name and he said that he was deliberately vague which in fact he was by virtue of the policy itself that he was protecting there was an interest in protecting the federal protective service officers which is true according to the pol her testimony is that he admitted that he knew what he had done was wrong and that he knew that he had done it and that his purpose according to her testimony wasn't to follow a policy that was to protect an individual from  information provided by f b i akeson was taking steps certainly taken before she admitted he was aware of the policies and procedures in fact the government was and where these policies and procedures because they never asked until the course we presented it during the course of our pretrial and at if this is true that this policy is to be believed that when you expect that the defense would have called other criminal investors criminal investigators into corroborate well they knew full well number one that other criminal investigators would corroborate this david school teddy was a criminal investigator he informed the defense that right before the closing arguments were several days before closing arguments that the government specifically asked him i saw speaking to this particular witness asked him what we talked about he said we could they talked about the policies and procedures and could i verify in fact he said yes he could verify that and he passed that information along to prosecutor david von who was one of the prosecutors  nine and thirty three motions and that's how they make their way into the record also your honor  client who finds out that someone else has lied and has given false evidence against a third party what are they supposed to g agent show of our lease to show of our who also was a government witness but i don't understand how that policy give someone license to file a report that that is false in other words perhaps you would file no statement at all about should interview because you know carte between a rock and a hard place but i don't understand how acutely licensed to file a false or misleading report about that interview your honor his interpretation certainly joe's josel result interpretation who by his own admission was probably further to the right or to the left depending upon where you are what your view is in terms of these policies i don't believe that the report itself was false for under the circumstances in which it was prepared and that was regarding the petri investigation peachtree was on the twentieth when the report was something finalized and signed off on also signed off by were so clearly conclusive that any prosecution against one here could have commenced based on what was in that report but that's not the standard to search for whether someone somehow to file a false or misleading report if somebody else can figure it out no that isn't the standard your honor but i guess where i differ is i don't believe and i don't think that director result when he testified and certainly the evidence that we presented during the course of our trial i don't believe that the statement was false i don't believe that the report of investigation was false it served its intended purpose and that is to clear or to convict to lead to the conviction or to lead to the acquittal of a petri of this jeffrey petri and in fact it did  the actual the actual inter in internal investigation that was to commence should have commenced after and at that point and then directly as all testified to when the government asked the same questions on cross examination wait a second how do you ever know about the recant well number one you know about the recant because the investigator is going to testify to he becomes your your witness shows jackson would have become a no i do witness and he did the moment he was interviewed by oh i g admitted in the course of trial and again it's in the brief we didn't know anything about the recant when we spoke to conrad and jackson conrad in jackson volunteered the information oh by the way there was a recant so the process worked and had always been informed through no fault to mr jackson but had no idea been informed in a timely fashion the process would work a lot sooner so there is a you know and what is the i guess i'm not i'm not following  front of the courthouse after time the courthouse right after several days when they were finally confronted with a videotape that my client had a client is the one who was supposed to investigate it that's correct and your client didn't put in in his report there was an admission that they were that they were off site of pursuing something that they should have been pursuing what why isn't that a fairly serious matter what is the justice here what happened to you in  because because he did put in his report that in fact the there was that these witnesses could not have done what there could out of the witnesses but the officers could not have done what they stated that essential he put forth  the discrepancies what the injustice occurs is that he was following reasonable at least what he believed to be and what regional director law result the chief of the whole region san francisco california nevada and other states where he articulated as the policies and procedures that castle is something that really the importance of atkinson's testimony because according to her testimony in your client admitted that the reason he did it was to protect  fellow person from any repercussions for having a mind and he did not tell her did not tell her that he was doing it because it and understanding of what policies and procedures in the supposed to follow and he admitted to her that he knew it was wrong so why isn't in terms of the factual record in front of us what do you see even the remaining relevance of this argument that he was following policy when there was evidence that that wasn't his rationale and the jury was entitled to believe that because i don't i would all due respect i don't think that that i think again his statements were taken out of context and we were left for unfortunately rely on the recollection of then you're asking us you're asking us to put ourselves in the position of the jury yes but but i understand that but what i'm what i'm suggesting though is that the jury which was presented with evidence that i think would would is that i'm not asking this panel to act as jurors but what i'm arguing is that essentially the conduct the misconduct of the government the one that we talked about and the others that i briefed actually the most the second most or another group just kind of was when they tried to because there was no contrary testimony to his denial or that they should just ignore it because the judge told them to so where's the purchase from that well he was the sole defense witness whose credibility was essential and the very first words first because we were still at the start of her case if you she felt that it cured of instruction could resolve that but certainly there was no attempt to go back into the facts of what  we argued we laid out that we felt that there was no good faith basis to ask that question that in fact there was no investigation and that's the essential with the district court found but i don't believe that a curative instruction telling a jury to move on and disregard that could  any any defect it just might not if he hadn't answered the question but since he answered no and that was never contradicted then wouldn't it just make it look like the prosecutor had done something silly or irrelevant or something that the jury should not have heard and i just don't think that realistically speaking if we can take it in terms of how i think your honor asked the question and how this plays out in the real world well how this plays out in the real world i don't believe it was we can assume that the jury could disregard the taint of that question certainly the intent of that question by the curative instruction i understand judge patel that the best she could she wasn't prepared to work order a mistrial at that stage of the proceedings but i do believe that permitted to do that aren't we then in effect giving a white wash to every criminal case where the u s attorney can turn around and say mr witness for the defense your currently under investigation by the grand jury isn't that true well he was a pretty he was he was the question he was he answered no because he didn't know all right biassed is that we permitted to do that set up a biased there's a prosecutor have the right to start a grand jury investigation for every witness who potentially is going to come in and then ask the question is not  ss could have been call but that in fact there had been no witness to corroborate now under this court's decision in united states versus career for example the court so that a prosecutor not isolated incidents with only one record is not an isolated incident i will have at least two incidents here where something you say well it may have been  created it deliberately vague report in order to protect officer hair from possible disciplinary criminal or administrative investigation and that further he had a dislike for internal investigations generally didn't testimony and whether it's out of context or not it certainly provides sufficient evidence for the jury to find all three of the elements of the crime here first he  number number of cases from the circuit holding just that and further that that core principle is not changed in a way by arthur andersen which construed a different statute fifteen twelve which the court determined to require the defendant knowingly corruptly persuaded putting together the definition of knowingly awareness understanding and consciousness incorrectly wrongful and moral to pray for evil in that that relevant to the issues here it's not relevant right so why was it then asked to prejudice and it was asked to produce that it's improper right i don't know if it was just a prejudice i think i think it was asked arguably to that the government the court ruled the question not proper that the that any prejudice was mitigated by the guy's response and that in any event a very specific limiting instruction was given so i think that there was may be surprised  if there are no no question investigation is improper i and i and by highlighting our commenting that certain evidence could not be corroborated and i want to point out if i can that when