crimes and in this case the government's failure to turn over agent tracey's supplemental it's got the time to report and a timely manner violated mr treat as due process rights a central issue a central focus in this trial was  credibility determination between the government's lead casing agent agent tracey and mr tweak as the defendant in this case the jury had to decide whose version of events they believed who they found more credible and if the government agent tracy lee casey agent had written a supplemental report that report corroborated a great deal of the information that mr tree guys had told agent tracey at the time of the interrogation in tracy had then gone out and attempted to determine whether or not what mr getz had told her was in fact true if she could corroborate that information and she was able to imagine tracy believe that mr trick as was lying about coming to the united an extra day to do anything with respect to the drive to report the problem with the timing of the report and the district court also noted this is the subject of the report came out during the cross examination of engine tracey when i asked interesting which report she had written and the response was that agent tracy in addition to the report of investigation i had also had written a supplemental report which the government at that time termed was not of any significance didn't relate to the testimony didn't relate to the subject matter of the trial for that reason the district court stated the report should be turned over after the lunch break had gone at that point where the government had turned over the report the government's case was finished mr treat as was being cause of the stain and at that point that's when the report was turned over understand every bit of what happened when it was turned over that the problem matter is that when it was turned over there wasn't a sufficient amount of time to be able to go through the report and i just report i could have said we want to continuance of the day we want but the more times i ask you the hour ten minutes a day or this is a bombshell motion for mistrial i mean it just seemed to go like nothing had happened but the concern was that your honor and it's my you know you try to tell us this is a great big deal but at the time it doesn't seem to have been anything they concerned with and the district court also had this concern  also the court has to make the judgment and the judgment upon the concern do you cause problems with the jury in saying look we need we need a break we need you to come back tomorrow and inconvenience the jury who will then of driving manner asked for time your honor we just got this report we need the rest of the day to take a look at it in our we need so it was like you got the report was like so it wasn't a case that the report was turned over and war that the government had the government have one witness i believe the value of the marijuana witness that was last wednesday part have been turned over after the trial had begun after the lunch hour their part was not turned over immediately sitting throughout the entire trial and that the concern with recalling the case agent at that point is the case agent is the only witness in that trial who is privy to sit through every witness testifying at the trial  then able to sit and listen to mr treatises testimony and can change their testimony can you make alterations based upon what they hear based upon the testimony of other witnesses no other witness has that opportunity another witness another agent that may be in the hallway is not going to be able to come in after being privy to that information what was the point of that though so the point is that if then you choose at that point in time after the report is turned over to call in tracey back to the stand and to question her about the contents of that report not only is it taken out of context and loses some of its its vigor in cross examination that the mo interrogation the mode of questioning that the jury comes to expect how the jury expects evidence to be presented additionally at that time she's already been able to hear the testimony of mr three s and is then able to make different comments to change her testimony based upon that she's an adverse witness and she was the case agent for the government and she was able then to take the information that she has learned because of the fact that that information wasn't turned over in a timely lying about numerous factors she believed mr terrific as it was not going into the united states to visit relatives she didn't believe he even had a cousin in shula vesta she didn't believe any of those factors and she was allowed to be called to the stand to answer those questions knowing interrogating mr treat guys or whether she was applying whether she believed him at all i do think it would make a difference with the leak case agent getting on the stand and saying you know i kept on questioning him for forty five minutes i asked him questions repeatedly i went through prior text crossings i went through all this information with him because i didn't believe them i told him he was lying and i went to honest information and then lo and behold the day before trial agent tracy it's a great deal of that information the reason why she didn't believe his deny knowledge story is called into question she didn't believe that he did know about drugs because she didn't believe all of these other factors which then she has the opportunity to go and corroborate these other factors it may change her view it may change the circumstances of that interrogation and the credibility that's given to mr treat as a statements can't i just don't want to belabor this point  of agent tracy in her saying i don't believe this person i don't believe what he was saying and then agent tracy later is able to corroborate a great deal of that information so even if she didn't believe him at that time and continue to question him because she didn't believe him she actually was able to make a factual determination subsequent to that interrogation that those facts were true that there were other witnesses who corroborated those facts and the importance is not just that th extremely important and the reason that it is so important is that it does have a substantial effect on the government's key witness on the credibility of the government's key witness as a district court repeatedly stated this case  credibility determination a credibility battle between mr tweek as and the lead case agent in this case your honor and i would note that the district court repeatedly stated that the document the supplemental report was not turned over in a timely fashion and page three forty one of the accept the court stated miss jennings you were telling me that had ms sullivan how the report in a timely fashion she might not have cross examined agent tracy about the follow up efforts that she made if i had them a cell of them representing this fellow i might have then said do you believe him when he told you he was going to visit his relatives in chula vista i mean i don't know whether my question is could mr element ha down cross examination did you believe him when he told you he was going to visit his cousin i suspect she would have said no i don't believe that either but the point is she couldn't even ask that question or devise that strategy without having the report w of the judge apparently if the same time you could recall the reporters produced you can recall the siege and that's a that's the point of the motion for a new trial that's at the time of sentencing the judge made that invaded the jury's decision making ability by inaccurately answering two of the jury's questions which the answers to the questions thereby bolstered the credibility of the government what about the enhancement of perjury the obstruction  report believes was not truthful testimony and the district court was not speaking of the statement regarding knowledge as the district court was and manifest instead the district court was discussing it that he didn't believe says implicitly yes he did i think i don't agree with your honor and that the district court made a determination that was really his arrest he made it up he's referring your honour's to the prior crossing crossings and then he said that the explanations prior crossings caused him to distrust the rest of the testimony the district court did not make the requisite findings which are necessary for it and obstruction enhancement i do agree that the district court did make findings regarding false testimony it's not entirely clear whether that false testimony the district court is referring to is merely the prior crossings testimony or going beyond that testimony defendant deny knowing of drugs that had a subsequent confession to knowledge of drugs at trial took the stand and testified that they didn't know anything about the drugs being within the vehicle the district court there stated that they met as was very clear initially when she spoke to officers and then she took the stand and it really was quite the opposite she denied it i do believe that she knowingly lied on the stand and inaccuracies this court reversed finding that because the court here did not expressly find th trial wasn't of the counsel to her credit she looks at the district court's argument between my co counsel and you know she grabbed grabs on to that but with that at the time the district court said a number of things with all due respect to judge burns we didn't have the benefit of the report at the time that that this is sketchy was going on the trial started on february seventh with picking the jury in the afternoon and the trial actually got started the next day on the eighth and it lunch time i turned over the report to ms sullivan and they have the report could have called agent tracy could've done a number of things and they chose not to quite frankly why because agent tracy i've talked to the defense counsel so clearly she was aware of these witnesses and and frankly she wanted to call the other cousin she could have she chose not to for tactical reasons i think there's a lot of supposition in assumption as to why even tracy prepared this report and it's really in it's not in the record and honestly wasn't because she didn't believe it was because she was directed to do it by myself i told her on again would done again warning and jimenez and then this is the minutes case i think with the ninth circuit wanted to make sure of this is an individual that takes the stand the family has an absolute constitutional right to take the stand and not to be punished for that here in this case is there an express finding that the false testimony was material and expressed i don't think i can just burn john a did never said the magic word material i think he laid out the facts a factual predicate in the record and it was it was i encompass all factual predicates of perjury as required by gonna get i mean we seem to have a bright line rule that a judge has to say i find this material that happened here in your honor with all due respects you are a menace you know you should have told the court the mean old nasty ninth circuit requires reason how i read that is provided the supreme court gave the ninth circuit guidance in the gardens was that the factual predicates be there granted just burns did not say material did not use the phrase materiality but i facts in that case the judge clearly did not give did not give deference to the individual's constitutional right to testify and and then if he's found guilty not be punished for that he judge burns is following the spirit and the letter of menace when he says you can come into my court you testify without penalty but if but if i look at the evidence and i find out that you lied then you'll be punished for that report and i do have to say that again the district court did take numerous opportunities in order to try and have the time in a trial to read through three points and fully digest the report and page three eighty eight the district court finally at this point the case already gone to the jury says i have to say that i have looked at the report and i'm even now more firmly convinced now that it was discovered bill and then goes through a six page i believe explanation as to why he believes that that report that we picked a jury the day before that so it's actually a day and a half i guess before the report had from when they were part of them prepared until when it was turned over and what's the  i think i'm going to help you out here it's my recollection that the date on the report is the day before the trial begins so i think what you're trying to told the first day of trial was devoted to selection of the jury  supplemental brady report was then compound it by the district court's responses to two jury questions twice the district court boasted the credibility of the government in answering at the jury's questions the first response indicated that the government and failing to turn over that report had done nothing wrong and that the government was not in any mistake for refusing to turn over that report or failing to turn over the report in a timely fashion the district court and subsequently indicated that the reason the jury did not have to exhibits exhibits be and which were the secondary agents report and the report investigation from the leakey's agent agent tracey what your policy is for impeachment purposes the opening brief that at that point it's not listed that there is a discussion in the record there's also another discussion considering it or explaining the discussion between counsel that also doesn't appear in the record  council myself i've tried to amend the record in order to do that but the court reporter doesn't have any record of it and the only other way to further explain that is to have a stipulation between the parties and government counsel that remember exactly what was said first agreement between counsel as to what the jury response would be was in the record the actual response is at three thirty three to three forty six and the discussion with counsel is at three twenty seven after that the discussions between counsel don't appear in the record your honor can also see that there was a discussion and that on page three ninety five of the record the district court after then coming back and speaking with the jury says i have discussed this with counsel and the short answer is no the prior discussion doesn't appear in the record so there are areas of the record that is missing this was again highlighted in the motion for a new trial which is at page twenty nine of the excerpt the district court did not take issue with that the government did not say that that was incorrect and has never been disputed by the government nor in the government's briefs that that incident occurred or that that happened the district court in making those two responses to the jury questions the first question on whether or not the jury was to consider or could hold it against the government that they failed to turn over that report and the subsequent response wondering whether or not they could have exhibits b and c how pounded the original failures turned over the by drawing a negative inference against that party a party stimulates responsible for cloaking something that has a reason for apprehension and in this case that's very clear the jury was called upon to make a credibility determination between agent tracy and between mr tree and the district court in answering the questions in the way that the district court chose to answer those questions beyond the agreed upon response by counsel not only said the government isn't hiding evidence evidence from  government didn't do anything wrong but if there is evidence that you are missing if there is evidence reports that you want the person that is hiding that evidence from you is defense counsel which is an inaccurate view an inaccurate and clearly not neutral explanation as to what happened at that time additionally counsel and the define it have a right to be present under federal rule of colonel procedure forty three a at every stage of trial including the paneling of the jury and the minor role adjustment the district court stated as a matter of law that feeling that my general adjustment would not apply and that was silly because of the reasons for trial as a just a court stated as a