failed to hold an evidentiary hearing in order to that would have i submit demonstrated that failing to grant immunity use immunity to key defense witness michael found distorted the facts and process so i had some sympathy with the claim we speak only for ourselves we will consult before i had some sympathy with the claim because so many government witnesses got immunity like anybody they could use correct to testify and it was free but you had a witness you couldn't however your proffer didn't sound to me like it would matter much always say the two of them went in and ripped off another bill you will feel are wound up dead and there and each one says the other one was the shooter i couldn't see where the immunized testimony mattered because first of all the guy in the bar didn't overhear your prospective witness safety shocked that or just that he shot a man right and right in the mill you that they were reunited i don't know if that implies the same man and the second thing is so what if he was the shooter instead of the other guy be in the shooter both he witnessed michael baume and had been in a club on some night in the winter of two thousand and three the shooting of robert garrets a place on february eighth of two thousand and three so in the winter of zero three michael baume was in a club and he testif the proper indicates that he ran into david adams now david adams with the key witness on the government's case on counts three and four he was only person who put mr strop at the scene and he put the gun in mr strives hands so he is the key witness this michael baume and said he saw mr adams that night mr adams was glum and so on and when asked what was the wrong what was the matter he said i just shot a man now the trial court judge said well he could have shot anybody but there wasn't any evidence that he shot anybody else and i think that that fact that he would say that the cheap the government's key witness and needed to shooting someone in the theater  inventory from other than that there was a man and it was in the same seat and no direct evidence that in addition to mr hammond would have corroborated the testimony of mr strife father who testified that late that night of the shooting david adams came to his house and he was crying over rot and so it's consistent with the testimony that mr baumann would have given that there was this particular night in the winter of two thousand and three when mr adams came into the club and he was my stash because that kind of spread out for well i think there was you know there's that's why we think that count should have been severed there was a meth him you know on methamphetamine conspiracy and then there was an attempted robbery to steal governor's matter i thought adam was nobody believe me from the get go so what did it matter that you have one more reason fair enough and that's a very good question i think the answer you have to go to the jury instruction to answer that question has when the when the judge went you struck the juror he came to council three and four and he said i'm going to skip over camp three he reversed the order and he said i'm going to make i'm going to instruct you account for first and this is consistent with the judge's earlier comments back when they argued the motions of sever that he felt that counts three and four were only related to the method sphericity incidentally he felt that they were sort of their own independent crime and so when he got to dance three and four in the instruction he says that you have the five first that the defendant intended to take or cause someone else to take the marijuana second that the defendant further intended that the marijuana would be distributed and third that the defendant himself knowingly and willfully a cause someone else to do something that was a substantial step toward the actual mission of the crime and i'm referring you have to if he did the jury had to find four in order to convict on three right that's the best the instruction that's given on three is that is th you have found on fourth what's the problem on free will on four i think that they have to find that he was there and in fact the government argued that he was the shooter that was the government's theory of the case and so the jury easily could have understood that they needed to find who did shooter well but that's not that's not what the direct talking with speculating about what the jury might have might have thought it had been used seems a little while fair enough to understand they could have they could have probably convicted either way but the reality is that they had to find guilty on count four and if they didn't they couldn't convict on count three and the fact is that if they mr pam had been allowed to testify and he had told the jury and they had believed him and they had concluded that mr adams was the actual shooter based on when added to all of the do what are you asking for we're asking for an evidentiary hearing that the district court and all the evidence you're hearing to determine whether or not excluding mr brown distorted the fact finding process whether the jury got a fair picture of the facts without because mister mr adams testified to other things beyond counts three and four arguably the whole case should be retried and we asked that it would be retried in two separate trials based on the prejudice that flowed from the lisa court kelly as you spend appearing on behalf of the united states i think the first thing i want to point out is that the current request for an evidentiary hearing was never raised before the district court the entire colloquy between judge panner the prosecutor and defense counsel is that we are one forty nine to one fifty one that's where you will see his prof her and what he claims mr bellman would have stead and where you see judge panners response none of this was raised pretrial it came out in the middle of trial and i can tell you as a practical matter that it would have been impossible to have given mr baumann and unity in the events of this trial all requests for immunity have to be referred to the department of justice and it takes a matter of weeks honor i think i need to provide some clarification and that is that there were a lot of witnesses called in this case there were only three witnesses who were actually given immunity david adams was only given partial immunity he was not given immunity for any crimes of violence and in fact this prosecuted convicted and sentenced before judge mosman in may of last year for intimidating a witness so in terms of the skewed eviden there were no other remember witnesses who were given deals who were given plea agreements who were given reduced sentences but immunity was only given to three and david adams was only given immunity for cause drug crimes not crimes of violen e the others if there munity anyway even though they didn't testify or was to just use immunity for that there if it was with informal there were no further prosecution so in terms of the skew here it simply wasn't presen and another thing that i'd like to point out in terms of if you have to put grab the sixteen of them out i'm sure there were two witnesses who also put him at the scene they were not eye witness it the third person that adams testified was president who we refer to as stinky and sometimes referred to as spooky nobody could find him at the time trial but the two other witnesses that put straw have at the scene one was detective hoskins and detective hoskins testified that he was the one supervising joseph lockley who was a confidential informant in this case one week prior to the shooting of mr garrett and the incident which forms the basis for counts three and four detective hoskins is listening in on a phone call between moxley and the defendant where the defendant describes precisely what he's going to do use going to rob a guy who's got a marijuana grow in his face and he says it's about four hundred plants he says the guy lives in portland and he's taken a gun with  and that's the e r believe it's one thirty to one thirty seven the other witness who put strop at the scene is misty dawn day now she testifies again approximately a week before this event takes place that she is at the apartment now sherry wilson is the ex girlfriend of mr garrett and she doesn't like mr garrett at sherry wilson's apartment the defendant's adams and sherry wilson planned home invasion robbery of mr garrett sherry wilson even drop him a picture of the house she tells them here's where you go in here's where the marijuana grow it go get it his room she skated through misty down day she was never prosecuted the woman that set the whole thing up and i need to start why i need to clarify the portion of the record that mr estrada cites in his brief in quoting the prosecutor's argument closing as you are one eighty eight and in fact that's actually that the prosecutors were bottle if you actually look at the clerk's record of the trial transcript at page one thousand and thirty five you will see that mr hobbs who actually prosecuted this case did in fact argue he told the jury flat out it doesn't matter if it was adam's or if it was the defendant who was the actual shooter under the pinkerton theory if you find that they were both there if you find that they were there to rob mr  that's all that it takes so the government's argument was consistent with the jury instructions the judge can argue if the jury has decided that adams is just not a credible witness and disregard everything he said or did you have what we have a circumstantial evidence that you know we know gary was shot there testified we know someone attempted to rob him and then again we've got the circumstantial evidence from the detective and ruling was that when he didn't even get to should i force the government to choose between immunity and acquittal the interest of this was even relevant and you need to keep in mind that the theory at trial for the defense was not that it was a the theory at trial was an alibi defense the defendant presented two witnesses who said that he was at his father's birthday party all night so in terms of it simply if he was harmless for that reason because it didn't go was i don't know who shot him because i wasn't there but we also know from the entire trial record that adams was subject to some pretty rigorous cross examination i'd liken this to the confrontation clause cases a court decided not to long ago the united states versus larson where when you have a mountain of evidence you have the trial court instructing the jury to view this this witness's testimony with heightened caution you know that when adams testified he himself is not subject to any immunity for any of the home invasion robberies and witness tampering in elko if you take a look at the defendant closing argument to the jury his central theme was adams is a liar adams is a liar you can't believe him well there was another there for the jury to police here he was corroborated i expected hoskins misdeed on day so without adam's what you have is someone at least one reliable witness well place and that's really it set right and then misty done dazed over hearing of the planning of the robbery that's what that's what i was talking about you got the policeman and misty dawn day and right and somebody else as i recall saying a week so i david adams was a very important witness there's no question that david adams testified to these home invasion style robberies without the benefit of a new unity for any of the violent crimes you know david adams admitted that he had it involved in s many home invasion style robberies that he hurt his knee you could no longer kick in door you know he was not an ideal witness but i would submit that there was enough there that he was a credible witness at least for the points that form the basis for counts three and four he's got an during the trial and the conviction should be thank additional testimony could have been the tipping point such that the jury discredited adams altogether and maybe even concluded that strabo is not there the only other evidence is his testimony from mr don de who participated in a conversation where everybody was smoking give the jury that evidence and now mr stroud has to sit in prison for ten extra years wondering what would have happened had m