and that information was held to them was withheld maybe even more importantly case the prosecution affirmatively represented for all of those categories of evidence that all impeachment evidence had already been i think it would be if there was a skiff there was a request for that and as it turns out some of the briefing was all it's cleared up in in our reply brief here here on the apparently no one noticed it  i didn't brought it up in the reply there was some question as to whether or not the defense had access to the to the health records of mr carmi and what i didn't know at the was way at the end of the hearing because i think kind of out of order why no one noticed mr martin represented that he had been in touch with the bureau of prisons up in minnesota and that they had furnished him medical records and reply brief but later on it turns out you know almost ten years afterwards it turns out that there were more records that had not been turned over like to principally to begin with about the rule thirty five issue and i think the key error in the memorandum opinion in this case is that it found that quote the government did not promise  reduction in his sentence under rule thirty five in the return for his testimony at mr branscum trial but there was clearly a discussion of that at the sentencing hearing and there was a sidebar that went on  off the record first between counsel and judge webber and they went back on the record and judge webber very clearly made a distinction between a five k one point one motion for which he reduced certainly to forty two months and then basically went on to say after that in addition he said it's been represented to me then in one certain circumstances that happen here after which expressly elaborating elaborating that this was a rule thirty five motion and referencing further follow up conversations they had with mr paling over i think it went through the spring of the following year this was  of two thousand i believe and mr branscum then started to become entangled if you had kind of an unusual beginning with the government in in two thousand and one and  trial was in and started on november twelfth of two thousand and two so there's a it's about a one year period between the sentencing hearing and when mr mr bran  no other remedy is because none of these facts became known it came out in a big cascade beginning in two thousand and ten when the trial was actually took took place i know that they had hagar takes that into account well i guess what i'm saying is we had no factual basis for this because it had been essentially covered up or not disclosed k if you'd like i can submit a supplemental memorandum on that witness questioned about possible rule thirty five really yes mr carbury he was asked whether that was whether he'd been offered anything he said i think that was phrased in terms of whether he was expecting a further reduction in sentence and he basically said you know here's the quote you wanted another he expected you were going to get another deal for actually testifying didn't you and he answered i never said that and i never expected it i've never been promised anything and as matter of fact i've never asked for anything except for a transfer to another facility when in point of fact he was clearly expecting it as correspondence indicates with his coun and he was utterly flabbergasted shocked beyond belief when he didn't get it in december of two thousand and two right after his trial so you know i mean i think this was a completely false statement by mr car but now what about that the private investigator in the private investigator undercover uncover some indicators there was there was these lines what the private investor carmi told the private investigator that he might ask for a rule thirty five in the future and you know what he didn't say anything about already having been offered one or expecting one i mean it was the the barest possibility and it was nothing hearing and as well as his attorneys and mr paling and it was quite clear that an additional reduction was being offered in addition to the five one point one motion so you think that because the witness did not it even though you had a reason to ask because the witness did not it that there was no there was an adequate notice or indication of this possible could brought up the way he met an adequate proof i guess is what i'm trying to say there was nothing nothing to put his hands on and counsel for mr branscum he had asked mr martin whether there was a rule thirty five motion being considered and mr martin said no hume phatic lee denied it and in fact he denies it to the stay as i understand it and they said it says that there never was a quote promise of a rule thirty  five and i'd like to address that a little bit too because i don't think it has to be a promise and if you read the memorandum opinion from below the trial court and this is following the lead of the prosecution in this case and at the evidence hearing and so forth they always say that there was no promise well no there wasn't a promise per se there was a a likelihood is the way that judge weber describe  it and these things by their nature are never likely to be a promise per se because it depends on the formants with a witness at a later time which is exactly what judge weber said based on your continuing cooperation so is that is that the was transcribed by the court reporter and then there is a whole train of correspondence after that an event that took place that indicate that mr carmody definitely believed that he had an offer he he would call it sometimes a promise of a further reduction and i see that my time is up and i'll return in a few minutes thank you so much may please the court good morning your honors in order for the appellant to succeed in this proceeding your honour's to this court would have to fine that the district court clearly erred in its findings of fact of which it made over one hundred seventy seven findings in its memorandum an order which is seventy two pages long or that the district court committed legal error but not just any legal or you would have to be legal error that rises to the extraordinary level that is reserved for only the rarest of cases those in which the most fundamental errors of character are occur ones in which the integrity of the proceedings below are compromised that is not the case here your honour's the parties here are in point no no your honor i heard your questions earlier that was not argued before the district court other then in the context of the abuse of the writ proceeding but would correct it w have jurisdiction so we can we can consider it right yes your honor i believe that this court could do that i think that while i'm unfamiliar with the case that you referred to your honor  i do believe that your argument or that issue at least dovetails into our argument the government's argument in terms of the abuse of the writ and let me be clear on that from day one fifteen years ago when this case originally started the petitioner or the appellant has known all of the information that is in that it has in his plea for the worse may not have had the specific document but he's known all of the information and the substance of that information in fact he's litigated it and numerous occasions before the magistrate court before the district court and before this body for years and in terms of the specific documents even though he didn't have all of the specific documents he knew where they were he knew how to get them and he chose not to and i think that that's the sum that's the substance of our argument terms of the abuse of the writ that either it's been litigated by the appellant in prior proceedings or that he knew about it and he chose not to litigate it when he had an opportunity to do so concerning the findings of fact your honour's the appellant disagrees with some of the hundred seventy seven facts that were found by the district court he has not demonstrated however that those findings are clearly erroneous he doesn't argue that the court the district court at least in the evidentiary hearing misunderstood the facts he doesn't argue that the court failed to consider certain facts instead he argues that the district court should have found those facts differently and that's not a clue that does not meet the clearly erroneous standard in the high burden he has to meet furthermore what's important here your hon is that the district court listened to the witnesses it assessed their credibility and usa paley who was the prosecutor who handled mr karmas case initially testified at the evidentiary hearing united states attorney martin who was the lead prosecutor for mr baranski the appellant's criminal case testified at the hearing mr karma himself testified at the hearing after all that testimony and receiving all of the evidence the district court made its conclusions based on the credibility of those witnesses and the key finding that the district court made as it relates to this rule thirty five issue which i'd like to talk about in just a second here is that there was no promise and there was no offer and i respectfully disagree with my opposing counsel about the word promise and the word expectation mr carmi testified at the trial that he was not promised to rule thirty five and that he never expected one so we're not just dealing with the word promise court that handled the underlying criminal trial and so that court was able to see the proceedings the criminal trial proceedings first hand it knew what the impeachment was that the criminal trial and then again heard the evidence evidence you're hearing honor let me in let me clarify my point in other words the district court knew what the avenues of impeachment were at the criminal trial right so that is a finding of fact that it should be reviewed for clearly on a clearly erroneous standard the effect that impeachment might have had maybe certainly  next question that this court could could review and let's be clear when mr carmi testified at the criminal trial he was extensively examined about whether or not he believed or expected that a rule thirty five promise would be made he was in fact i don't was he cross examined about it and that matter was put before the jury but the appellate was able to put on extensive evidence of whether or not he believed the rule thirty five promise had been made so the district court in evaluating whether or not any of this material would should or should be a long way here certainly our first james carmi testified in the district court made a finding of fact that he didn't hear judge weber's comments those having what he did not hear judge webber's comments so he could not have been laboring under the expectation that he was going to get a rule thirty five because of those comments he didn't hear that the district court made that very specific finding of fact secondly the district court found that judge roberts comments didn't refer to rule thirty five  agree with counsel that there was commentary about the likelihood of a potential sentencing reduction from some unknown basis or unknown reason that some indefinite time in the future they were very conditional furthermore what do they refer to well in any case judge if if the defendant were to come up with some sort of new information or or some new regulatory point they could always come back and approach the government as a finding of fact yeah and it gave that it's cited that as one of the eight reasons that it gave for why no rule thirty five promise for expectation of offer had been made among the other multitude of reasons why the court found based on the credibly the witnesses it didn't happen so in other words to your question when judge weber was talking at sidebar with counsel that is that that discussion was no different than in any discussion that there's always a possibility that somebody could come forward but let me make a further point  government didn't have the sentencing transcript certainly we were aware of the information because we were deemed to be aware of it but we didn't have it so instead what james martin the u s attorney at the time and who handled the criminal case that is he told the appellant where to go to get it he said i don't have the sentencing transcript you can go and get it from the court reporter in other words there was parity between the parties the government had no greater access to the citizen transcript then than the defendant did at the time he knew where to get it how to get it  it was information that was or was within their control yes or yes your honor it was information that they had access to certainly it was under seal that they could have done just what the government did after the trial which is filed a motion unsealing go get it and that's that's the salient point that i'm trying to make in our brief your honour's is that and it also goes to the abuse of the writ the dependent here had access to all of the information so when you referred to other documents earlier judge arnold that could have led to new lines of impeachment say if that's your a person records rooms like that those were litigated those were brought before the match to court so so the knew about them for instance he could have subpoenaed the bureau of prisons and i respectfully disagree with counsel sure you would have to go through some procedures to get them whether that's to regulations or other procedures but there are avenues that you can go in get the information the appellant could have done that but chose not to that are the documents that he's claiming were suppressed were  suppressed under the standards of brady because they knew of the existence of the information they cross examined mr carmi about his memory loss about brain damage about any cooperation he had all of those matters before the jury are and to the extent that expunged so that he can go back into the firearms dealing business that's part of the record he's saying that he is laboring from an adverse consequence of having a felony conviction which prohibits him from importing firearms which is the very thing that he was convicted of  import falsely in the beginning the district court did find that he was suffering from adverse consequences your honor and and the government doesn't dispute that finding that we have a case on that issue on the adverse consequence issue there are there are some that were cited in the that the parties filed before the district court about whether or not a mirror for the near stain of a felony conviction can rise to the level of an adverse consequence in courts disagree on that subject your honor we have that you have a case from the circuit on that point not up to the evidence your hearing was unemployed he wasn't claiming that he couldn't find a job or anything like that if the government's not standing and fighting on that you know your honor we wouldn't we would agree with the district courts fighting the fact that he is suffering from an adverse consequence although this court could certainly because it's a noble review find that just the felony conviction is not sufficient but we're not disputing that you honor unless there are other questions i'd  works because for one thing but since having been sure that all the evidence to support those kinds of claims they simply be on available i mean is this really a statement about the standard of review that we're supposed to bring to this these kinds of records that we're just kind of almost hands off over of all the like for instance the standard that applies when somebody wa a mandate recall so what's what your thoughts on yes your honor i do think it's a standard overview issue but i think it also depends i think one of the reasons that the supreme court said and it cited in our in our briefs is that it's real it is hard to conceive of a so just because of the opportunities and secondly in part because of that the court has said this is the law and one know best and it is reserved for only the rarest of cases and i do think that that does go to the standard of review so it's not just it's just  law that you can have to show it has to rise to that extraordinary level i see that my time is up your honor thank you i would ask this court to affirm the district court's judgment the seventy two page memorandum in order thank you i think most of our criticisms of the memorandum opinion had to do with what i would call irrelevancies it doesn't matter if the offer was contained in a particular document it doesn't matter whether it's customary to have a five k one point one motion followed by a rule rule thirty five a lot of the findings were basically of that nature the fact that carney testified that he didn't expect to rule thirty five at trial is not does not support the fact that that he didn't expect when he lied when he said that and i think it's pretty clear that he lied when he said that that certainly contradicts judge webber as far as no new avenues concerned the problem here is that the i think trial counsel thought that there was a possibility that there might have been something out there about for the relief but when they tried to explore it they had no evidence we had no facts to support this kind of stuff and so that was why these things weren't contained in in prior proceedings here  this is a very unique case and it goes to some of the discussion at the end of counsel's presentation about the rarity of corman novus the facts here are quite unusual where eight years after the fact a chance occurrence mr branscum got his hands on a letter from karmas counsel that showed that there had been a rule thirty five walker and that carmi had lied when he denied it that was in a meeting with