good morning your honor my name is anthony de p h o and i represent the the key issue in this case is whether mr percy grows in title to a new sentencing proceeding as a result of the government's suppression of brady evidence relating to conduct considered by the sentencing judge but you're only vehicle than get rather than then the information that was them or your honor in hill the supreme court also stated besides a sentence being beyond the statutory maximum that is a term of a sentence  is illegal if it is constitutionally invalid and that's the third option that the court and he'll give so the court never defined what does that mean when a term is constitutionally invalid in this case the term is invalid because the government suppressed evidence that would have allowed mr per school to mitigate his punishment a one hundred year sentence without consideration of the young charge crimes would not be reasonable in this case these are outcome driven factors if we exclude them the court cannot come to this conclusion because if we look at the case before judge keenan and in that case he said explicitly i will not consider anything besides what you have been convicted for in this case although the sentencing judge said through ninety two the accusation is contained in the present report claiming that the fans were responsible for the go on to a murders and on the on the next page at the top of ninety two it says the commission ordered certain other murders in addition to that at the time of sentencing the sentencing judge said to mr person i find that the evidence shows you have sanctioned killings you have voted on the golan to  murder and you profit being a member of an enterprise that succeeded on murder and violence in addressing mr percy goes co defendants santoro and carollo who were not charged with any murders as well he said i find that i one hundred years  is appropriate because you too have been partners in conspiracy to murder authorize murders and violence and that's at page a one sixty eight your client has taken position referencing to when it says the commission sanctioned other murders there's no other murders in this case aside from what the government put forth in its sensing memorandum we cannot look at this in a vacuum this this is a fact of the record in which the sensing judge says in one breath i'm not going to consider this and then the next one addressing the defendant he repeatedly its case was that was why the commissions to approve murders your honor i don't i don't believe that is the government position i think what one was their theory which makes the bread brady evidence more material because if they did set forth the theory that the only way a boss can be murdered is through the commission and now there's evidence that mr percivale was not part of the commission when that  occurred then that would be material to the defendant nine hundred seventy nine according to the government and the brady evidence shows in this case that the f b i case agent had possessed evidence from at least four informants members of the commission times which by the guy you're going to you're hearing a very valid point and that is as soon as the government has notice that this evidence is material to the fentons theory of the fence they have a duty to disclose it the government cannot  disclosure by claiming the evidence is too speculative that is not even consistent with this court's decision and the simone where it said it's not up to the government to determine the reliability of brady evidence in this case the district court felt that the brady evidence was too speculative to warrant disclosure there's nothing in the record to support the district court's conclusion in fact the reports indicate themselves that the government considered the information of high quality and extremely reliable the government also concedes in those records that it used the information to its own benefit in sworn applications to courts to obtain wiretaps arrest warrants and indictments how can the government now claim that the same evidence it uses for its favor you you've got to establish an abuser so wrecked and there's an abuse of discretion in this case because a the court misapplied the brady rule it is not up to the government to the side what is reliable in order to warrant disclosure and be the district court misconstrued any murder the first time the government sought to hold him accountable for any murder was at the time of sentencing the supreme court has made clear that we must look at brady evidence in the context of guilt and punishment yes he was but there was no proof that he directly participated in any murder and this brady evidence undercuts the government's theory for example well if he wasn't if he was not part of the commission in one nine hundred seventy nine and the government had at least four who identified another person as holding that position until at least november fifth one thousand nine hundred eighty according to the government's theory mr per school could not have voted on the go at the murder in seventy nine right and the brady evidence shows that the first time the gentleman was axed to step down from the commission who was an alternative person was the ember fifteen thousand nine hundred eighty so mr percivale cannot have been part of the vote on the go up to a murder in addition the government suppressed evidence showing that alternative suspects were responsible for the spiro murder the government later prosecuted these individuals and obtain their conviction at no time did it seek to correct the record in this case it is not the government has an obligation to disclose evidence in which it seeks to enhance a sentence once we once sentencing arises and the government introduces on charge x it triggers its brady obligation to disclose evidence relating to those on please the court my name is matthew podolski and i represent the united states judge duffy's decision should be affirmed for any of three independent reasons first judge duffy decided that he would not reduce mr person sentence even if his motion had any validity parts of the decision there is a prevention grounds which judge duffy decided on and then there is the question of fact or law judge duffy said even if there was a valid basis for this motion in fact or law he still wouldn't reduce sentence and that was not an abuse of discretion particularly given the gravity of the office conduct and the extreme length of time between the imposition of sentence in this case and mr percy goes motion so i think even if judge duffy was wrong on the merits he should still be upheld on the potential ground of denying the surely discretionary will thirty five motion second mr person has motion was time barred by more than twenty five years and third the motion has merit less in any event now i'd be happy to address any of these points in depth or answer any questions the panel has otherwise i'll simply say that as judge exactly so the claims in this case are if anything that the sentencing court judge oh and relied on misinformation because he didn't have the its purported brady materials the case was clear that in that case the claim is really that the defense was sentenced in an illegal manner because that doesn't go to the validity of the terms of the sentence as supreme court made clear in hill versus united states and that's limited united states which i mentioned i think is the seminal case on this and there the supreme court made clear that a sentence is illegal only if the punishment meted out was in excess of that described by the relevant statutes multiple terms were impose offense or the terms i think this is a key point the terms of the sentence were legally or constitutionally invalid in any other respect in united states versus malcolm this court said since the sentence is legal on its face it is not subject to correction as an illegal sentence under rule thirty five so there and frankly if you look at the structure of formal rule thirty five a the rule itself makes a distinction between illegal sentences and sentences that are meted out  underlying merits of the motion i'll go ahead and address the materials that are purported to be brady if the record discloses the reports let me step back there really two categories of documents that mr cover lies on in this case the first are a number of reports that he obtained through recent boyer requests that go to the stand to be the crux of the case so i want to focus on that first of all they're not one that's the government's sentencing submission the government's theory was that while mr percivale was in prison there were other members of the colombo family that acted as the boss and indeed the government specified that at least for some of the time th thomas developed well persephone now argues that these purported brady material show that thomas develop was acting as the boss during the time that person was in prison and in fact the record also some of the reports relied on for example in the appendix at two thirty four to two thirty eight actually confirm that person was still acting as the boss during that time period the reports are also not material as judge duffy found they don't undermine any confidence in the verdict or the sentence and that last point is important because these all go to the evidence that was put on at trial as to whether or not mr percy was the leader of the colombo family  these purported brady materials dispute that but the record shows clearly the opposite first of all as far as the murder of tommy sparrow or mary berry those were not considered by the court the court rejected the government's sentencing submission  full and those murders were on food in the pre sentence investigation report nor were they mentioned by judge owen at sentencing as for the murder of our mind go on today the court was very clear about what the evidence at trial basically control large construction projects for the entirety of new york at sentencing judge owen said and this is at the appendix at one thirty eight to thirty nine that the jury has found you guilty in my judgment on overwhelming evidence that being a member of the commission operating through it and you were imprisoned during some of the time that this was going on and so it was perfectly apparent that although the lines of communication may not even freeze otherwise you still running your operation and he goes on to say essential that the basis of the sentence is your membership in the commission which  you know as just i would just like to address two points one is the government's contention that this motion is time bart if it is true that the government suppressed brady evidence which should have been disclosed before the time limit expired was not chargeable for the delay in fallon the court said that when unique circumstances are present and the delay is not chargeable to the defendant but rather caused by a detrimental reliance on an act of the government fastest way to get relief and he was entitled to relief on the rule thirty five is to go back to the district court directly and request that a recess and sing be conducted that that is all that we were  reading room rule thirty five that's not what he but i think it's an important question because hill does leave open the question of what it means that a term is constitutionally invalid if the government violates brady during sentences during a sentence is that an outcome driven factor if we exclude those bridge that those brady violations and we can prove that the result would have been different is that in a legal sense and we believe it is because if you look at the two cases which the government sites in their brief and they mention the the sentence by judge keenan we have a sixty one year difference although this court found that the evidence in both trials was substantially similar although didn't violate double jeopardy the rigging were substantially similar so judge no one had to do to had to take consideration of some other factors and the other thing that's important to remember the government created this not take a vote because he was not a member of the commission only commission members can take a vote according to the government's theory if he's not a member he did not take a vote and therefore the sentencing judge is reliance upon that information in regard to him not everyone in some general of determination would be improper and it's important to realize that the evidence regarding the go on to vote was not strong when this court considered mr personal direct appeal the dissenting judge said the government's proof concerning the go on a murder is akin to the movie the godfather and a movie script is not the type of evidence to sentence men to one hundred years in prison that alone implies that the sentencing judge did consider these on charge crimes in sentencing mr percy otherwise why would judge bright make that statement thank you people will reserve decision this time