brief that there's no jurisdictional bar to the appeal well if they're wrong that jurisdiction isn't something that you know we have it or we don't have it that you know we don't have to accept concessions if we think they're wrong period is just simply not an issue and how do you reconcile the dates because if in fact you look at the rule thirty three as amended on its face does it not appear that this motion would be  verdict on october twenty first one thousand nine hundred nine and the motions filed january fourteenth two thousand and three is it not two and a half months beyond that period of time it is timely under the  prior version of rules and after that the as amended on twelve one ninety eight and the verdict in this case came out ten months after the modification of rule thirty three how is it that it would not be that rule thirty three as and then that would be the appropriate statutory construction do you believe that the motions filed when they were would exceed the time period as conviction depends in large part and i would suggest substantially upon the testimony of the chemist mr olson that testimony tied the only narcotics that were recovered in this case the seven case of overwhelming evidence had it been one the first jury would have had no problem convicting him they obviously had a substantial problem with this case is for parker testified in his own defense in the first case the problem with the record particularly the now developed record is that there is no way and the government government now practically concedes the fact that there is no way chemist to the two hundred ninety five kilos that was stolen from the be any locker which is mr parker's connection to the case if you can't be connected to those two hundred ninety five kilos the government can point substantial circumstantial evidence that suggests that mr parker was doing something illegal but it doesn't make their case that they charged him with which was stealing and selling two hundred  hundred eight report was newly discovered evidence yes all right yes now what do we do with sergeant klein's reference to the report in his trial testimony well that's the basis for the fact that it is in fact newly discovered evidence it's it is evidence that trial counsel did not have he says on the record fact cancel says on the record tell me about these kilograms of cocaine and klein says well i wrote a report about the kilos fairly clear from the record the trial counsel did not have that dark that record and it's even more suggestive you know i'm sorry i have a problem certainly he i would suggest to the court that the that sergeant klein had the documents and he referred to it in answering his questions put to him by truck and so truck and it was still doesn't have the documents he doesn't realize the significance of the document because had he had a copy of it and had he realized the significance of the documents his whole conduct of the trial from that point forward would have been substantially different he would have cross examined chemist that you know people always claim they don't have something and then they ask for it you take a recess they look at it then they come back and everyone you know cries to the court about what are we going to do about this and you come up with something so that people can be prepared to give them a continuance for a while or you take a recess or any number of things or someone makes a motion for a mistrial and like judge fletcher said you can't just sit on your hands and a long time later than claim well yeah i know it came up there but now what really was it was his defense based upon the absence of this document i think that's what the record would show at an evidentiary hearing and i would suggest to the court that the the alternate relief in this case to granting the rule thirty five is to remand the this matter to the district court for an evidentiary hearing so that the record can be completed because you don't have to have an evidentiary hearing for example in the trial where there's a they go and present evidence or testimony pursuant to the janks act and this is a very common occurrence and the defense counsel will not be aware of particular statements of the witnesses who have testified until after they have testified and then when those documents are turned over the court is then required to give a reasonable continuance at that time but there's no requirement that there be an evidentiary hearing or anything close as this may be a very loose analogy but why would there have to be this evidence you're hearing at that time in order to make this determination at the at the trial court level i would suggest to the court in this case and have an injury here it is necessary because there is substantial question concerning the state of the record both at both  trial and the subsequent testimony of chemist olten i would suggest to the court that at this point the government has conceded and i conceded that's an overstatement the government has said in reply in response either t there the other thing that i think is important is that the district court has evidently misunderstood the issue in the order denying the rule thirty three motion the court states that the said seventeen markings could have been on some of the other unwrapped heeler grams well we know now from the supplemental records that none of the kilograms that went to old and had seventeen markings on them but if we go court says well the twelve could have been unwrapped well like that's impossible there were never twelve unwrapped kilos and how do you have seventeen markings on unwrapped dealers to begin with so the court is the district court i think misunderstood the significance of this issue in it and it's demonstrated in its ruling denying the rule thirty three motion there could not be twelve unwrapped human grams with seventeen number seventeen markings on them the other thing is we now have in the supplemental excerpt of record we have two thousand and five documents which has been disclosed by the end of the police department with agent jester the nature of the sixty one kilos that he's picking up none of those kilos indicate any type of number seventeen markings and more importantly there are only you can argue that there is an indication that fo marking so the yellow could have a seventeen on them but there's only four old and comes back to court in testifies he found twelve kilos with number seventeen markings we have a record that is re to be serving and on parole of a life sentence for in fact i would suggest to this court that if the court does not feel that there is sufficient basis to grant the motion at this point that certainly mr park should be given the opportunity to expand that record before the district court the district court in terms of the issue of whether this is newly discovered or not says the record is ambiguous well that's hard talking down to the really discovered evidence you know we have an unsigned copy of a cover letter from the government and i'm not i'm certainly not disputing that that letter is not part of the record it is but what we have discovered subsequently is that there is substantial reason to believe that scott bolton's testimony is simply incorrect that's the best description that he could be given and at  perjured because he could not have gotten twelve kilos grams with the numbers never seventeen marking on them given the state of the record that we have before us and all the more reason why trial counsel should have to come into court and testify as to whether or not i had one with co counsel his wife and prior counsel ever saw this crime report because that is the crux of the case if the if that klein report is right and the kilograms that are submitted to hold and did not have a number seventeen marking there is no connection here in parker to the two hundred ninety five kilos from the be any evidence locker and that's the charge now the government is going to argue that there is lots of circumstantial evidence that would implicate parker in wrongdoing be doesn't implicate him in the two hundred ninety five healers that are taken from the ve and b and eve locker without bolton's testimony that is the only connection save peta p o s hardly anything other than a locker without that connection and without that triangle parker is over here with one codefendant pointing the finger at him saying he's the source of all of these narcotics of others a little more not suggesting that there is no basis in the world for people to be suspicious of mr parker lots of reasons to be suspicious of mr parker but is this record that's now before this court sufficient sufficiently reliable to cause him to spend the rest of his life in jail i submit that it's not and what mr parker should be able to do at a minimum is to expand this record before the district  through the evidence rehearing and then present that issue to this court again based upon a complete record the government points to the fact that trial counsel has not come the twenty to fifty five the government also concedes that it contacted trial counsel in an effort to get trial counsel to be supportive of the government's position trial counsel responded and said i will only testify if a court orders me to do so all the more reason for an evidentiary hearing let as have trial counsel come in pursuing to a subpoena have a court order him to testify and have him say whatever he's going to say about his knowledge his possession of the klein report prior to trial now habeas lee if he supports the government's position mr parker has a problem but i would suggest that given how this case proceeded that he's not going to say that had he said that had he had that document his conduct of that trial would have been substantially different than it was because all you could never have gotten on the stand and testified to twelve kilograms was number seventeen markings if trial counsel had declined report and also had the information relative to the release of the sixty one so jesters da six that he prepares which is the basis of the submission to olson is obviously at least incomplete and misleading because it mentions a total of some thirteen kilograms which supposedly go to alter so we have a number of documents none of which support the government's contention that the test of look first at the document was turned over and secondly that old  at some point we have testimony about twelve feeler grams with the number seventeen marking which are crucial to the government with those twelve kilograms absolutely crucial to the government's prosecution of mr parker and issues are going to be resolved based upon this forced resolution of the rules or the three motion except for the issue related to the conviction for to point out with respect of twenty to fifty five motion is that trial counsel who then is retained to represent mr parker on appeal there's not argue to significant issues related to sentencing which cost mr parker the difference between a sentence at the low end of a guideline range of approximately twenty five years compared to life in those two issues have to do with a two point enhance possession of weapons and a four point enhanced not for his role in the offense now those issues were raised before this record at sentencing but somehow when trial counsel becomes appellate counsel and files the  for mr parker on direct appeal he never likes to raise any issues related to sentencing for a man who has just been sentenced to four concurrent life sentences and those six levels are incredibly important in terms of the guideline calculation with respect to the guns the probation department merely says at the time of his arrest there were guns in his car the only person that he had any contact with any direct contact with  there is no evidence in the record that those guns were ever part of that relationship why would he have to have guns present to deal with his former girlfriend monica pedo who he and for being an organizer manager of an extensive criminal law enterprise and having managerial control over least one of those people well first of all there's very little evidence in the record that we no evidence that says parker had any relationship or contact with any of these other people hit oh by her own admission said these are my customers i sell to them this is and i've been selling to them for years none of these people come have anyone out selling that this is but this court has said the fact that you are a seller doesn't make you a manager and that's and that's what the court concluded based solely upon a conclusion the pre sentence report i'm not i'm not saying that i that  obviously that issue need to be addressed but counsel was ineffective in failing to raise them if you have a man who is facing on the one hand twenty five years on the other hand life he ends up with life you go up on appeal and you don't say that to this court by the way th record was wrong at sentencing with respect to two substantial issues i don't believe mr berger has to say that he would necessarily get this court to agree with him but he certainly has a meritorious issue we have to show but if you like i mean i see you have to show prejudice right i mean you but if if if the facts are such that you wouldn't have one and this court would be convinced of that you can't really show branch that's right i'm just saying that i don't believe mr parker has certainly a declaration as to trial counsel's two prosecutors and that's found at you are sixty one through sixty three indicating that the documents in question were in fact turned over four months prior to trial additionally there is the testimony of sergeant kline g e r one seventy four and one seventy five where starting kline talks about this exact report says he has a copy and certainly if council didn't have it wagner looks at it and then says the report shows that several kilos oak of cooking were turned over it shows a total of six hundred seven kilos of which four hundred twenty were released at the riverside office of the department of justice of narcotics enforcement and there is a report that was handed to him by trial counsel are saying that it appears to be the sergeant clime report yes in fact it's a quote from the sergeant kline report and it's handed to him by counsel so in fact there is no newly discovered evidence not only did defendant defense counsel have it he cross examined one of the government's witnesses with it so late first or second trial the second trial of the second trap in all honesty honor he may have used it at the first trial but that is not in the record before the court and on that matter so what we have here is non newly discovered evidence and the trot trial court in deciding that issue of whether there should be in our new trial or not can take not only the record before it in the government papers but its memory of the trial itself according to rock and in fact found that there was no need to know me no newly discovered evidence in addition i would like to address some of the points that mr brennan brought up and i'd like to go over some of the facts because i think that the chronology of events in this case is in somewhat somewhat hard to follow and came in through many different points of the government by defendant  kilograms of cocaine that were taken from pencil so that circle that defense counsel talked about in his papers is complete with the burglary documents and the he kilograms of cocaine and one clearly is wrapped in yellow tape with the seventeen appearing underneath it which you can see see through the yellow tape moreover moreover starting line noted in his four and in july of that year there was the burglary of the evidence vault four hundred twenty kilograms were released two hundred ninety five were stolen which means that some grounds from the original anaheim agent chemicals testimony is basically from g r to twenty three through to seventy nine but what he finds is by stipulation exhibits fifty seven three sixty three testifies that you are twenty eight first was wrapped in black and then had a seventeen underneath it so there was no way that one could tell that in fact it was a seventeen prior because the black rappers not see through as the yellow exhibit sixty six sixty seven and sixty eight sixty eight which is black reference sixty six and sixty seven which are yellow there are seventeen counsel in his arguments made a point then in the supplemental six yellow for tan and three chemist and found twelve kilogram wrappers with seventeen's on them there was no way he could have known or anyone could have known until they on wrapped everything that some of the the with the writing on it the writing said many in columbia and had a fax number and then finally a clear cellophane wrapper with its hand tape around the edges and fifty nine that's found it g e r two forty one so alton's opinion was that they were from the same source and that was also given to the court and to the jury in this case picked for only the seventeen's were picture same that the grounds which came from the evidence vault gnashed the keel grounds which came from pencil and in every regard they matched the third way i should say is that some of the an it remains an additional way to look at that report and certainly one has to consider the report as a whole is to say there were seven teams in the seizure and the report makes that clear there were seven teams that went to be  evidence vault in fact in the cross examination of agent bodner counsel makes the point that twenty percent of the kilos in the original seizure were in fact seventeen's so the argument at that time which c seventeen's on the wrappers and that was supported not just by her testimony in court but after being arrested she agreed to cooperate it cooperate and made a call to christine whitney christine whitney and pi to arranged to meet they did meet and during that meeting as whitney was handing pito one kilogram of cocaine she said these aren't bad they're not the seventeen's but they're not bad so the evidence of seventeen's being from claim of false evidence but the government would say that that was raised for the first time on appeal at the district court to deal with the fact that it wasn't newly discovered in fact that there was overwhelming evidence in the court found that there was overwhelming evidence  of drug dealing and it started up again in one thousand and six innings seven of ledger's match that the unexplained wealth in defendant's possession for a man who made fifty five thousand dollars but had over six hundred thousand dollars the fact that he had ninety seven thousand dollars in cash in his work vehicle along with guns so councils argument that the gun enhanced meant was not merited because peter was the only one he dealt with is misplaced when one is carrying around basically one hundred thousand dollars in cash and the testimony is that there was a gun on the seat next to the forty seven thousand dollars in cash that he has in one arm full of the government need not prove more that he's trying to protect his markets proces furthermore as to role under three three v one point one of the guidelines which were in  network of which he was a part was certainly over five the government would also note that the free trial services report came out was a total of fence guideline of forty six which the court did on both the gun and the roll adjustment which would both be evaluated for abuse of discretion in order to change his sentence if the court has any questions i know i've been talking for a long time i don't think there are thirty other questions thank you for your argument coun enough themselves significantly different from the thousands of other kilos of the scene to say that they that that was the source of the in the locker now i grant you that the the seven their work he lives with that number seven teams that went  at this time both for five five seven three six and zero five five zero two five four will stand submitted as this court is now in recess until tomorrow morning at nine o'clock thank you