factual findings that the a usa during a five minute conversation with the witnesses council issued a veiled threat to that witness to not testify in her case or she would get in his way in his pending matter and indictment with prejudice that was an extreme and severe remix program of the year and the supreme court in this court has explained that the remedy must be tailored to the alleged injury even where the throat and those would be having a retrial after the witnesses pending cases in the western district of missouri had been finally resolved she could have also had the retrial after that witness witnesses alessandro aris which then would have made the defense witnesses testimony moods and on serry so let me turn back to the first issue that we raised in this case which is that the district court found that the consequences that the usa issued were for the mere act of testifying and that is not supported by the totality of the record there were only two parties t conversation between the a usa and the witnesses attorney the attorney's name was tracy spradling and there are descriptions of the conversation are in our reply brief pages eleven to thirteen in the chart and that sets out the various descriptions of that five minute conversation and they were the only two people privy to that conversation and from that we know the a usa in open court said to the district court in describing that conversation that she discussed with mr allen the fact that her client had open charges in the western district of missouri and also that if he were to testify at the trial mr roper trial he could face the fact that if he was found to be lying under oath that there would be perjury consequences so that was the a u s based description in open court to the district court judge about the conversation  about three months later in relation with the rule thirty three motion in the hearing mr allen did provide an affidavit and in that activity that she said that that the prosecutor did tell her that mr salazar could be charged with perjury should he testify so again the consequences there are is if he commits perjury then he could be prosecuted for that anything else so mr rather an interactive david says nothing about threats or consequences for anything other than committing perjury and then when miss spradling testifies the rule thirty three hearing and she's cross examined or she's actually direct questioning by defense counsel in this case about the ramifications she answers and says it was just discussed that and this is kind of paraphrasing that ramifications against ruiz was a strong possible outcome and it was clear error for the district court to assume that the ramifications discussed there were anything other than perjury ramifications because the only evidence in the record related to perjury consequences and mrs ragland at no point contradict that or states that there had confrontational yes correct your honor she said it was not confrontational she said the a usa was assertive and that's how she described the conversation and she said it lasted five minutes or less so this is a short conversation find that the a usa issued a threat of getting in his way if he gets in my way that has to come from the defendant and really solid arced testimony could not have come from this problem because most probably never testified to that conclusion but we argue here that the inferences that the district were true were not reasonable and were not plausible when viewed in the context of the entire trial or the entire hearings related to this matter here now described their conversation related to perjury consequences if she had been threatened in any other way or miss moore had said to her if your client gets in my way i'm going to be getting in his way over here in kansas and in missouri surely that would have been a memorable event that would have been in this palin's affidavit and this fragment clearly states in the affidavit other than what i stated in my affidavit i don't have enough of a recollection to tell you anything out maybe she subsequently recollect that not she didn't have to really anything much more when she testified the next day so she provided the act of david and then the next day she testified that anybody  had told her client i don't know your honor they were maintaining the attorney client privilege so i think their mind and then some discussion on the record before she testified about the fact that she would not be that she was maintaining his attorney client privilege to their conversations and that she would not be testifying to what happened during that conversation and similarly when rooney solids are testified at the the circumstantial evidence of something something was said he decided not to testify the only thing he said during his rule thirty three testimony about their conversation was my attorney and i talked that it wasn't like right at that moment so that's the only examined by a prosecutor you might say something that could then affect your pending case in the western district in missouri and could affect you in kansas and i don't think that risk is worth it here for you to testify in somebody else's case so we don't know there's no the factual findings made by the district court must be used by this court unless they're found to be clearly erroneous this court has emphasized that the clearly erroneous finding must be more than possibly or even probably wrong said she said situation here where this experience defense attorney miss prattle it was said that we know she didn't think it was confrontational and it was a serve and that i was pretty clear itching to me that what she was told was if this guy testifies and was i'm going to go after him for perjury that is not what the district court found i know years later and if somebody asked me did the u s attorney threaten your client yes yes she did she did him and i told her but that didn't happen he she didn't remember anything in this particular circumstance the findings of the district court or that threat made by the assistant u s attorney went beyond that simple perjury i know that it was no evidence to that effect there was evidence to that effect there was eviden room this through week and she got permission to do it too she got permission which she never did it she then all she wanted to do it was very clear that she intervene in what she wanted to do with conveyor in this problem and never a perjury conviction in this case but what's going to happen to you in your pending case in the western district i'm sorry right correct there was additional evidence that was provided that was entered in that ms morehead said i know the prosecutor in your case that i can interfere with your prosecution and your other matter and again then fail to ever actually go interview ruiz allness morehead designed to do apparently was to go make sure that ruiz didn't testify that testimony the court also found would have been material in this case the indictment charges four counts two of the counts the defendant was found not guilty that the testimony was a ruiz would have been material and would have been important to that case and by being just waited to testify by being threatened that it did impact the case against mr roscoe any matter where we have a clearer the trial judge is the one who is where the variations and demeanors in the tone of voice very heavily on the listener's understanding of the police and what is that therefore it is up to the district court to make those findings of fact in this case the district court had heard in the entire trial the district court had heard all of the testimony given had heard the testimony of the rule thirty three hearings relative to this problem ouis and also from the defendant mr rasco based upon the court made an extraordinary number of factual findings that occurred in this case we have the  threats of this problem and then continued i believe the court right up during the government's arguments originally that mr jose ruiz came in and was on the stand and testify very limited area that the court had said and be discussed and mr aris stated specifically and repeatedly that he wanted to testify there is some intervening action and within a few moments that other statements and the other actions of the us attorney involved in the case including those you listed relative to this characterization of brady material late mission brady  findings and made very clear factual findings throughout a very dense decision here that determined that mr rasco was denied his right to a fair trial in this matter we have additional factual findings that the degree and kind of warning made to mr bradley and to be conveyed to mr jose ruiz by ms morehead was substantial that the testimony that would have been given by mr weaver was material and was relevant and we have the situation where we address the web test that the court went through in determining whether  there was a violation to a degree that would necessitate the granting a motion for new trial here the court went through an extended finding i would also point out that part of the web testing is whether or not the witness consulted an independent lawyer before refusing to testify in the case the court did find that mr ruiz did in fact have this problem in representing him in this matter however in this particular circumstance ms spradlin then became the mechanism to convey the threat as the government has indicated is the court has pointed out ms moore had never actually spoke directly with m made by the government in this case relative to ms morehead statements are merely argument that she made before the court she never has the blood as war had actually ever tendered that affidavit no nothing merely speculation argument were given by the government in this particular circumstance the jury specifically found that the gun that was discovered at the same time as the methamphetamine that was used as the basis for count two and found that my client was not possession of that and found him not guilty of the charge so clearly there was a very subtle determination to that situation and how close that might have bit further because my client was forced to testify because he was not given his witnesses that it wouldn't be forced to  the because of the other matters that were taken care of because of the brady material that was neglected because of the additional prejudice to my client because of the other course in a new trial going to have the brady evidence and everything else at the beginning of the trial we would however that brady evidence being really sleep did prejudice him in being in custody for another two months awaiting trial it also did not give us the opportunity to investigate that brady material but you know first there were a retrial this goes to remedy to degree it does and i understand you're going to remedy at this point  those were still difficult things and also the fact that results are was threatened in this case certainly isn't going to be remedied by the fact that we would have a new trial  there is no indication that he would ever do that again what is the belief the judge roberts she dismissed the indictment with prejudice i think and she did that based upon the case she did and for many of the reasons set out as well as others that she discussed in order decision that were set out in the town time i will tell you there are several circuit court decisions that state there is nothing nothing in permissible about a judge or an attorney warning a witness or a witness is counsel that perjury is a possible consequences they ordinarily do