right so we'll close call our next case it's two cases united states of america versus germany you know our senior and united states versus do not take or don't i'm sorry if i butchered those names but the numbers are seventeen dash one one four two and seventeen dash one one seven eight problematic because only workable three judges are right but you just criticize the opinion but not the judgment reached and you've got to you've got to reverse the judgment right because we can affirm for any reason supported by the record that that  best case that i how can you say it's infinite though i really struggle with that argument you say it's in essence an odd infinite item that he's appointed right for a to morrow a successor could be appointed that is true but though it's no you know you have to look at it like well you know where does it end can you go then for it ends when congress says it is and congress has told us his term ends when a successor is appointed no congress is not get to dictate that congress can define and mold this is this the statute but congress can't do something that would be in violation of the constitution all right all right the fine but let's take this in order that what i hear is it's congress has provided for a term beyond ten years because of the language until a successor is appointed but congress acted illegally in so doing because it violates court proceeding be adjudicated by bankruptcy judge but that was problematic because it violated our all three likewise here to allow eight arkell for judge to have you know a and unlimited term and this term has just gone on to this day stern wasn't about length of term was it no it was not it was about capacity to hear certain issues it was and particularly as i recall the jury trial right party may have been and which is you know a constitutional right what what constitutional right to live against in the virgin islands have to have their case heard by someone who's here less than a little ten ten years in a i was i would it just seems like a consummately statutory question for congress as opposed to a constitutional matter what's your constitutional hook to say congress could not allow this term to isn't that what they were doing with the statute recognizing that they might not have a successor in place at the end of the ten years judge or yes and let me put it les i was thinking about this case  interviewing the seventy bankruptcy act they found it to be unconstitutional the declared into such and stayed the outcome of their decision or the pipeline for congress and in essence fixed the problem and then extended that down that the order don't need to do something by a date certain and perhaps it is not done just like northern pipeline if it can be extended and that the the result is not going to be the foot the floodgates of litigation is not going to be problematic almost twenty nineteen the virgin islands has been united states territory for over one hundred years of it at this point at some point you have to ask yourself is the transitory nature that informed all the decisions of cantor all of those those territory clauses do they you know doesn't does something change and i was in it after hundred years things do change that just letting court would have to do that though i believe that the language in glidden is sufficiently clear along problem here and that the text the test of article three section two is clear the text which should control the gaza to sion the text says where the united states is a party it should be be adjudicated affront of but article three court so second c i which to this date as we're arguing this was never disclosed that the i was used to introduce the millions of dollars in the puerto rico case the defense in the same thomas case never had an opportunity to cross examine to investigate to look into that see i never had an opportunity to have any dealings with that c i nonetheless that's the ice testimony was used to bring in plans which were used to sentence my client so the defendant was absolutely prejudiced because of the defense request after the direct examination it wasn't until the cross examination that the defense and to really argue janks which point additional records were were disclosed and within that secondary definitely agree that it's not less than likely harmless at the point that again the court the difference doesn't have an opportunity to look into the c i and nonetheless the points are used against this point so if that those funds and that's the guy and everything pertaining one point seven million dollars i'm not mistaken my client never had an opportunity to cross examine that confidential informant my client to the state has no information no disclosure nothing not something that could happen at the point that was learned of mid trial none of that could be tackled at that point so there is definitely it was deafening prejudicial to the defendant at that point where the defense strategy was compromised they were not able to bring that up post in the substantial if what's your response to the government's arguments in its brief page thirteen that defendants all indicated to the court that the janks issue had been resolved and that after testify agent hill could be released as a witness well again the agent who could be released as a witness because at that point the prejudiced to the the findings in those reports that at that point the defense was unable to tackle anything  addressed the issue of the fact that no information had been provided regarding the c i and and that they had just discovered of the existence of the c i let alone any information pertaining to the cia so this was again i remind the court the reason this is a gentler lesion is this wasn't brought out these reports were not brought up following the first tranche requests after the direct examination this was brought up following the cross examination there was a renewed jencks objection and the during that testimony following the testimony prior to cross examination the defense requests the notes that the agents who and the reference they were eventually turned over they were turned over then cross examination takes place following a review of those notes and it comes to the defense's attention that there are additional notes it's that had not been provided the court in monish is the government and tells the government this is in your possession the government's response was well it was in the possession of puerto rico not in our possession and the court at that point says we're one under one sovereign this is one government so the good faith exception at that point we would argue is moot because we are one government one sovereign and it was in their possession the entire time they had just not to what was done by the defense to seek further discovery at that time and he was the motion for a continuance you know motion to the defense at that point pursue the notes the defense at that requested the no on interest on usual typical jencks argument that's a good one is the materials not produced these were produced the pub or perhaps as i understand your argument in an untimely way the problem here is that the government only produces it p so right so it's a timing issue what you're saying you're saying that the timing of the production prejudiced your client deprive your client of a fair trial or due process or all of the above and in and of itself is a gentile it's not the point that the court is there required the government would be required to produce the documents post the direct examination upon request of the defense they failed to do so if they produced a they produced some they failed to produce all of the documents requested during cross examination they renew the chance objection they say it's not enough the government says it's not in our possession the defense at that point has to again renew the gents objection the government says well it's in the possession of puerto rico hence we didn't provide it so yes they ultimately do provide this information post cross examination and again it contains information which is tantamount to a brady violation because there's information pertaining to a c i which the defense was then unable to do anything with in the midst of trial so this distinction between jenks and brady here because the other junk they were released the witnesses released without objection from the defense post after they produced these notes and they were subject to cross examination the other witnesses released this is it your position then that all the timing was not good janks had been satisfied but there was an underlying brady violation jinxes not side of side at the point that it's prejudicial and not is only excusable when it's not prejudicial so i would argue and i would have that failure to disclose or failure to disclose cases not delayed disclosure cases at the point that they're disclosing were they disclosed  late in those cases or not disclosed at all it was not disclosed however at the point that it's being disclosed post cross examination and the information there is not something that the defense can handle right and if the witnesses are gone or the defense can't handle it then it's plainly prejudicial but the record here seems to suggest that the witnesses were still available there could have been a pause a reset and then proceed or perhaps a continuance of if it puts you in a in an unfair position the problem is that that that point it's bringing information of material witness which was not disclosed at any point prior to now you're talking about the c i that's the brady issue correct it's within the was there a motion made at that point hey judge in the middle of pursuing o jencks objection or jake's argument we have now learned of a brady violation and we need to look into this they do bring up again at twenty one in the trash if they do bring up the fact that there is a pretty nigh lesion and that there is a second because you wanted the c i the the still undisclosed c i the problem is i think it's not a matter that we wanted i think it does prejudice the the defense and i think that it does have it's reasonable to say was prejudicial where that those reports were not disclosed because had the defense had an opportunity to look into the c i they would have been able to cross examine the c i and it would have been possible that the court found that it would have been possible for the jury  think that the i was not credible and that the information provided by that i was not credible in this case we don't know perhaps that's the i had information that you know a jury would not have found credible and and would have questioned the entire operation based and again that sea ice testimony had to do with a substantial amount of money which was in large part because of a number of the sentencing of the strict sentencing so i think had we questioning on cross examination as james material there was a finding by the district court at supplemental page two thirty five that the government had that the court had reviewed the documents and was satisfied that the government the court review the documents they were provided to the defense agent hill was not excused for a period of three days to allow councils to cross examine him and he was subject to the cross examination after the reports were stows were provided as well and it was consistent with his testimony that of his observations as well as what was contained in their case agent report in that matter and it didn't day as well was not released and subject to cross examination after the initial cross examination which parties were allowed to avail themselves of and he was in fact on supplemental one thirty exception has been chosen and qualified in that judge are just record judges sitting improperly to hear cases here in the virgin islands and all i do you respond to it's a hard one but what if congress your honour's have already pointed out he could be replaced tomorrow there is nothing that shows that they that someone has been chosen qualified and that our district court judge has refused to step down and there is nothing that shows that there been no effort for someone to be chosen and qualified so there is no violation of the appointment clause by our district court judge sitting in here and cases here in the virgin islands as far as  not subject to the requirements of article  three and this court recognizes that because we are because our jurisdiction is from article four and section three of the united states constitution there is could proceed to the challenge of agent foreman's testimony as a violation of the confrontation clause i would submit that there was no violation of the fifty two fifty three and two sixty two and two sixty three that he was consistent he did initially when he was reviewing or preparing to examine the firearms did rely on  special agent waters as report but then he independently physically examined those those firearms and that was he testified to he did approximately april first of two thousand and sixteen so regardless of what his  foreman was not tender to the court as an expert a person a lay person can give that opinion as to where firearm originated from or was manufactured and if there was any error we say the united states would argue it was harmless error because after agent foreman's testimony detective mark joe also former virgin islands police department detective and a t f over the drug enforcement administration testified about where the firearms were manufacture and in his career as a long foresman agent meant firearms are not manufactured in the virgin islands both of these individuals were available for cross examination therefore there was no confrontation by a leash and and because agent single conspiracy in this not or therefore there was no abuse of discretion in the district courts denial of a multiple jury or multiple conspiracy jury instruction the evidence supports that there was a single negotiation that negotiations started with our time financial source and other members of the conspiracy in puerto rico where appellant ciena an appellant pardo and i were present during those negotiations and the testimony supports that initially started at negotiation for seventy five kilos approximately fifteen thousand dollars per kilo it eventually went higher according to the testimony of the confidential source it ultimately they agreed upon one hundred fifty kilos and approximately thirteen thousand dollars per kilo and that negotiation was one single negotiation which was the start of the single conspiracy now and there was also other discussions and meetings between the confidential source and the appellant the appellants are denying  are seen in puerto rico and during that count those meetings there was never a renegotiation of how many kilos or what was going to the price was going to be paid it was just talking about logistics cardona telling her doing himself had paid for to have made into the boat that that boat was going to come to scene thomas with three firearms and other members of the conspiracy to pick up the cocaine and arrange for the final payment of the but they they are overt acts that that support a single conspiracy and i'm going overlap so that the the fact that it may have started in puerto rico and can and and volved a couple individuals there who then did not ultimately come to st thomas does not negate the fact that they're still just one conspiracy in this matter so we ask that you find that the district court's denial of the requests for multiple jury instruction and for their reasoning for sentencing and in this matter at sentencing the united states offer to the court the trial testimony as a court the district court was familiar with the matter as the district court judge was one that for sided over the trial however we did offer to the court the trial transcript in the testimonies of the witnesses that supported that one hundred fifty kilograms was what was negotiated ingredient by the members of the conspiracy and report his report is dated february twenty sixth he didn't have an opportunity to inspect and the weapons until april but it's impossible that his report which was prepared february twenty sixth seemed was based on his own examination when his own examination took place in april twenty second that's fodder for cross examination right at the point though that his his report is based on another agency report there is a book coming by a report offered into evidence with testimony was based off was the report offered in the waters report yes no it was not right and the moment let's start with melinda's dia's yes what was the constitutional problem there what was what was the testimonial right offered in evidence and then a ball combing there's of follow on case right because they tried to put in a witness they put in another report and book coming right and they put in a witness who was just the supervisor correct correct we would contend that the agent foreman was used as a surrogate to essentially bring in agent waters report while i am all right so that but that puts it on a very factually different posture than combing or williams we'll annoy right here we've got a person testifying this gun traveled in interstate commerce right that's how they tried to prove the essential element of their case that the gun traveled in interstate commerce waters findings given that he doesn't conduct his own your classic is that what he said is did he testify well i i can't tell you whether this traveled interstate commerce but my my colleague waters did this report and as i look at this report this report says commerce that would be a real problem but that's not what happened here right he testifies that he did base his report on agent matters report he testifies that at page three forty nine and then he again confirms that his report which is dated february two thousand and twelve two thousand and sixteen is done it predates his examination so his examination isn't done until april that report well that it all that shows that his reports probably not worth that much right and you could undermine his credibility by cross examining him with those are those arguments you just made which i think are powerful but when he says look i i looked at this in april he's he's done his own superseding investigation has or was it based also on his own investigation his report so his testimony his testimony he testifies that the gun traveled in interstate commerce right he does and as i understand it your argument is that testimony was problematic on a conversation clause because he wrote a report for a report that relied on the waters report essentially and i'm and i'm accepting all of that is a strong argument but then i'm asking you isn't it all sort of beside the point because foreman also testified that he did his own investigation and that investigation is what led him to testify that the gun traveled i resolve the issue that essentially agent waters report was introduced like a fruit of the poisonous tree argument almost you're making that that the waters report polluted everything that foreman did after that it to some degree and that it does again he  thank you and excellent job will take the case under both cases