firearm the consolidated appeal also involves his appeal hippest denial of motion for a new trial like to briefly address to issues that the parties do agree on the parties do agree that mr  explanation so the parties have agreed that if we determined that the district court erred in requiring a pattern correct before proceeding further that the case should be remanded correct it's footnote in the government's proof it should be remanded for the for the court to require the government to give a reason correct the crux of this appeal though is on mr felix's motion for a new trial and the entirety of this case i submit falls upon excerpts of record seven hundred forty two and that's where we just turned and that post conviction post sentencing that the trial attorneys in this case asked a third prosecutor from the u s attorney's office to meet with the person who did government was intending to rely on to make its case against mr felix to have a secret meeting with this witness shannon healey and to talk with her in the presence of two other federal agents and not only to advise  her what the ramifications are giving false testimony which we have no problem with prosecutors can do that but this third prosecutor did much more shannon he really had given three separate statements about who had shot mr felix initially she had said that mr felix shot himself she then prior to trial said that she had shot mr felix and then during trial she had said that a third person tank had shot mr felix and she was afraid to come forward with that and nation because of threats she had received from him this third prosecutor told shannon healy two of those statements that she had shot mr felix and that tankage shot mr felix that she knew that neither of those statements were true and that by saying those statements she had already is that that prosecutor made a huge cross over the permissible line and that those statements to her not only told her what to say which is a problem but when the trial prosecutors who were advising the district court judge the scope of heelys immunity at trial i think the district court judge was trying to do his best in understanding the scope of the immunity that she had so when the district court judge was listening to the trial prosecutors who told him that she can only be prosecuted if she tells a lie a trial that was untrue the trial process why was that untrue because a third prosecutor specifically told h you can be prosecuted for this one double or one you've already committed that offense so this third prosecutors last that inconsistent with the statement that she could only be prosecuted if she because the if the only correct answer for her to say in court was i shot felix if that wasn't true that's a lie in court  was that inconsistent with because if that's a lie in court that's perjury right but if if they ok if the judge was toll that she was advised that she could not lie in court against there's a disconnect with me regarding that statement and the misconduct that you're sure that you're saying if it is not true that she shot felix and that's the only statement that the government is going to accept are you saying that the extent of the government government's immunity was for that statement only correct and if that wasn't true and she's trying to be she's trying to do what's correct she absolutely did but she's getting inconsistent information so when she says i can't testify because i can there's there's no way out all of the government needed to do away out was to tell the truth right but there was no way for her to tell the truth if i tell the truth the no way for her to tell the truth in your view and keep her immunity there was no way for her to tell anything no matter what story she told it was going to be prosecuted because the government didn't believe it was these two stories and the government wasn't going to accept anything other than that it was mr felix so no matter what happened she was cornered and that's a problem and when the government did not tell the defense or the district court that about this secret meeting that's misconduct and it drove miss healey from the stand it really didn't matter at that point to mr felix what her testimony was because if she would have been charged it's more than impeachment at that point because if she would have been charged with perjury that opens up a whole other line of misconduct that mr fielitz could have gone after which demonstrates the sheer weakness of the government's case this was a snowball that didn't need to happen and it's uncomfortable to talk about this type of misconduct all and when everyone knew miss healy was going to have counsel this makes it an even stronger case than babbage's nevada dj's the prosecutor communicated the threat to the witness through the witnesses counsel wasn't even directly to the witness here we have an unprotected witness flanked by a t f officers and the counsel i think it's an even clear cut case this needs to go back i'd also like to talk about the brady violations in this case because it kind of inner cities and i think  it kind of crosses over with this one of the things that the district court talks about is we the defense was trying to keep healey out and then we were complaining because she came in and we were trying to keep healey out because of the brady violations the government kept information from the defense about the benefits that she received so yes because of that undisclosed untimely brady just information we tried to keep her out counseled the difficulty i'm having with the brady argument is didn't the district court offer a continuance in order for the defense they have to have the opportunity to look over that evidence and it did it it in and trial counsel explained the reasons why a continuance would not help but i thought the government should imo i thought the district court way laid those concerns by saying i think there was some concern that a witness who was unavailable could be made available if there were a continuance and the government and the course say well i won't let that witness testify i did mr felix was shot in the leg and had extreme difficulty because he was detained getting the medical help that he needed in prison further detention was not helping him so in terms of the brady sion i think the argument is weakened a little by the fact that the court was making efforts to mitigate i appreciate that and i appreciate that and that's always the government's response is that they should it's almost rewarding the government for delaying what i'm saying is when you have the government saying i was waiting to the last minute to protect the officer it shouldn't fly your the behavior but figuring out under the law what is the appropriate way to proceed now that we are in this position i understand how it is difficult to say that the district court judge erred by trying to mitigate the effect of the family issue because the the complaint was we didn't get it in time correct so and my larger point and i do understand my larger point is yes we were trying to keep her out but once she was in we had to deal with her as if she was going to be n so it's not as if we got the relief we wanted one she was in we had every right to try and deal with her as she was in it's not a matter of we got the relief we wanted the fact that she was excluded and we could not cross examine her that misconduct through the third attorney doesn't say she ate anything we should have had an opportunity to cross examine her without her there was no connection that would have led to the officers saying we relied on her information to connect the gun from that house to mr felix she was the nexus that connected the gun we should have had an opportunity to cross examine that and because of the way things played out we were stripped of it yet the government got an opportunity to use her in every way that it wanted to yes her in from her testimony was struck but they opened with her and honor call calling for the record according to the record we don't know who made the call the government asserted it was healy you made the call more than one person it's one person a female voice says using a nickname for mr felix says he shot himself and then another man asks what happened and a nother guessing i can't tell but there was no person who testified that's my voice but we were never the anticipation was is that healy was going to testify and identify and explain and so when that nine one one call was played it was with the anticipation we were going to be able to have that explained why it all goes back to you yeah that's right you tell so you have thirty five seconds we'll give you a minute for think here either you will hear from the government coerce healy off the stand it very specifically found that the government did not threaten her with a thousand and one violation of prosecution unless she testified the way the government wanted the district court found that the government did not try to prevent her testimony that it gave her immunity and did everything it could to get her to testify and the court also found that there was no brady or grio violation in terms of the disclosure of the meeting because it found had the meeting been disclosed it just wouldn't have mattered but let me ask you something counsel what do you think it is that unusual for an attorney who is not the trial attorney to meet with the witness i don't know what there was unusual in this as a general rule but in this situation the trial witnesses the trial lawyers were in court and healy showed up the second day of trial we had just learned that day that she was going to change her story yet a gun so as a kind of an all hands on deck day we had to turn over that statement and then what happened also as the district court found the third prosecutor did give pretty strong admonitions against perjury because she had given three different version of events not only did he give admonitions against perjury but told her she had already committed perjury is that unusual he said that she had already committed one on one  the government right a false time to the current she had said she had said that at first she had said two years ago that felix a child himself then she changed her story two years later when you know she and said at first well i shot him  recanted and then she comes into trial on the on the second day and says now another story tank shot him so what was the purpose of telling her that she had already committed a crime well in fact and this may there may have been a little bit of a disconnect between the trial attorneys here and the third the third prosecutor because that same year in two thousand and fourteen the solicitor general had decided that in order to prove a violation of thousand and we have to show that it was a willful violation that in making a false statement the defendant knew that it was that use reckon ever the less she was told that she had already violated eighteen us code section one thousand  she had been told that but also so we're looking at this not from the point of view of the solicitor general and how that affected the attorneys but how that statement affected her that's right and she had told she was told that that she was told that but here's give us a call what she telling three different stories she was told an obvious thing she was lying to a federal judge to a federal agent that's a statement of fact not one of her stories like that in peru point of telling her that she was like if you already given her the admonition that perjury can be prosecuted what's the point of telling her you've already committed a federal offense what was the point of a third attorney who's not the  giving her that statement really was to actually tell her that is against the law to commit a thousand and one violation because that is what we had to prove that's what the trial attorneys knew they knew that guidance they knew that the only way that we're going to ever be able to prosecute her for one thousand one is if she had been warned about it that those were violations that's what the what if it's already been committed then you don't have to wonder because the she's already committed the crime so what's the point of telling her she's committed the crime if you already know that she's committed the crime it was a i would agree with you it is and on graceful way of informing her that it's a violation there except again on the question of immunity she had she was given full statutory immunity use and derivative use immunity and not fully protected her fifth amendment right her only right under the fifth amendment was to not have anything that she said on the stand used against her including to prove that her prior statement was false we could never use anything that she said on the stand the court explained that to her she had a lawyer we explain that or nothing she said i'm going to advise her advise her to take the fifth amendment we think that the lawyer was ill advised in her at that point because here's the thing it seems the fifth amendment does not entitle to her to transactional immunity she doesn't have the right to be immunized for crimes that she may have committed or false statements she may have committed before she took the stand that appears to be what felix has been arguing is that we that she deserve transactional immunity that her fifth amendment right was to be somehow immunized for statements that she made beforehand there isn't such a right kastigar makes that quite clear that of this case trouble me i have to tell you that from the beginning from the fact that he was supposed to be arrested and instead of being arrested she was taken to a location and  was told the police officers where they could find the gun i just they're just sell me any unusual occurrences on the part of the authorities in this case that i'm a little bit disinclined believe the sequence of events the way the government says oh i don't know that there's a whole dispute about the sequence of events well i think i have the import of the import of the of the actions of the government maybe i should say this this whole thing with healey was really to me an orthodox in the way ultimately the evidence was obtained in the cup you know the defense has a point that she did give a lot of information in the trial even though her testimony was stricken the government's still relying a lot on the nine one one call in the fact that she led them to the gun right you have to identify healy as having been the maker of the nine one one call the helixes girlfriend at the time did indeed say that he saw her she saw healy on the phone but the nine one one call comes in quite independently but if he lee had what the content of the nine one one call and who said what could have been tested a little bit more on to her to testify that's why we immunized her and that's what we told her and why the district court kept telling  you need to testify about this so we wanted her to test where she was our star witness at the beginning because she was going to be the person who was going to testify as she had made many statements before that he shot himself so and and  to well but we are you don't know if she was going to testified today that at the end maybe she was the star witness that the beginning but at the end the government wasn't sure what she was going to tell racket even so even though she had made three different given three different versions of events at that point we still wanted her to testify and that's what the district court found about that meeting it found it and it didn't actually decide whether we needed to disclose the content of that meeting what happened the district recognized it as soon that maybe there would be some disclosure or looking at in the worst possible light that he was somehow strong arm but the district court went straight to prejudice and it found that even had that meeting been disclosed about what happened there that that it would not have made a difference and right to prejudice and what it did in doing that as it went through all different versions of events about how things could have gone down whether he testified whether she didn't testify or whether or not how she testified it went to all the different permutations and it found it would have mattered the nine one one call would have come in no matter what had healy decided not to take the stand she didn't the meeting wouldn't have come in if she had testified that in fact felix had shot himself that meeting that whatever that evidence about that meeting would have come in as some kind of impeachment to show that the government was trying to coerce her in the worst possible light into testifying a himself so that no evidence of that meaning would have mattered now let me ask you what was the evidence in the record of possession of the weapon by mr felix it is the testimony that he shot himself that he had and there was no problem with this everyone at the trial and there was an instruction that he knowingly possessed the gun so the nine one one call he shot himself gets us where we need to be ok so the government is saying that the one one call evidence regardless of who said it that he shot himself yes did identify felix as have what you hear on that call is the someone calls up to operate in a panic and you can hear a woman's voice saying scooby scooby scooby and we know that that is his nickname you hear groaning in the background so she's right there with him and then she's screaming for an ambulance the operator asks you know who's where are you she doesn't know so she turns to someone in the room and is yelling what's the address at some point we hear a voice saying well what happened she continues to yell he shot himself now and so and that's that piece and the man comes on he is also right there i disagree with felix here who saying that he was simply advised we don't know that he is in fact on the scene to he says i'm here with them he is also saying to the felix a shot himself in the leg he's looking at him and he's saying he's not looking well so both of these witnesses  there saying seeing that what that that's the evidence that the government is relying on the nine one one call is there anything else other than the nine one one calls that are also is there also is the physical evidence the ballistics the physical evidence of the trajectory of the  the wound was self inflicted but the officer was allowed to testify about how the shot what the trajectory he was shot through his inner left thigh out his lower left calf and another witness testified that felix was right handed so the jury was allowed to put two and two together to show a shot at that angle going in that way from a right handed person was a self inflicted wound so there is that we also had las vegas police yes what happened was she was picked up and she was she was told she was asked to show point around where the gun might be and the  officers were told that she should take them to that she should be taken to jail they disobeyed that order instead and they're honest but they traded that information chief she wasn't going to go to jail so that they could find out where the gun was now that was all that all came out at the trial all that all came out and so and that's not i mean the officers were reprimanded but but we needed to find the gun the gun by the time the officers got on to the scene there was no gun it had been moved we need to try to find the gun so that's why that happened kelso man ask you to briefly address the the batson issue yes so would you agree that the district court judge required there to be a pattern challenge before you got moved to the second step no i do not believe that that's of the district court judge and nor do we believe nor are we saying that this is obviously a remount question at all the district court did not that there had to be a pattern in order to show a crime a fish a case in fact he found there wasn't a pattern because there was another african american who was seated but it specifically said that that wasn't the only consideration and defense counsel kept pressing  are isn't it is it a consideration at the first step the pattern and it is it can be a consideration but it is not the the government the defense does not have to prove a pattern in order to the prime official i thought the court said there is no pattern it did say there is no but that's one of the considerations he said that is one consideration there is no pattern but he then said but i'm going to keep going and i'm going to keep looking and the defense counsel kept trying to push him and saying you know don't look beyond pattern you don't have we don't have to prove a pattern and the district court said i am i am looking beyond patterns of the test so if there if the very first juror is in the defense's mine being challenged for very first juror well there wouldn't be a pattern with one juror and i think that's not what happened here because every single juror is entitled assessed without reference to any impermissible reason correct correct so just striking one juror if the reason is in permissible as this court has found is if you permissible but that's not what happened here and the whole question of pattern was it is one way of showing a crime official case the defense comes forward with some evidence of a pattern that is a way of showing a premis aisha case here that wasn't the only that wasn't the district court didn't rely on the lack of a know that was the prosecutor was a prosecutor the prosecutor saying prosecution so why would the prosecutor say that she was she was mistaken on that i mean she in from under this court's law she was mistaken but the defense was very quick on it she that the defense said you can you do not have to show a pattern there's no necessary for pattern of the court is ok i understand the court also said you know the batson criteria look set pattern is one of five factors the fact that we have another macro so the that that factor doesn't satisfy but then that would seem to me it seemed like the judge was picking up on what the prosecutor had said in terms of there having to be a pattern i think in fact the defense counsel won this that in fact if you look at zero or one six she is saying you know there are other criteria judge i want you to look beyond pattern i want to look beyond pattern and the court says i am i am so the court did not make a legal mistake here yes do you think that the prosecutor was saying one thing but the defense counsel won the day she was very much focusing the judge on something other than pattern so i don't think here that the district court made a legal air  it seemed to me that the that the conversation focus more on pattern than not because the corset if there were two if there were two african americans establishing a pat pat it would be impossible if they strike bo a pattern that's what the court said so to me it kind of seem like the court was really focusing on whether or not a pattern have been shown when it would have been just been easier to proceed to the second  what the reason was that well and in fact two things the prosecutor did at that point in the game because there was this talk about pattern when the prosecutor did say i can proffer my reason on the record and the  the other to annul who announced in fact that they said that they were not employed those were not seated now there was the one juror number seventeen who was different when asked about his occupation he said my occupation now is retire carpenter that indicated to the government that that was his profession that he had been working all of his life juror number nineteen said my occupation right now is an employee so that is a race neutral distinguishing so that this court kill you or make a distinction between you retired in unemployment in this particular case the way the record doesn't isn't is and this all happens very fast but the carpe got up and said my occupation is retired carpenter that indicated that he did the work it was his profession he had been working his whole life and where as the germans were nineteen her occupation she said is i'm unemployed the types of thank you i'd like to correct the government's representations regarding the batson issues government council stating things that just aren't in the record there is no representations regarding what the government council's thoughts for and what it meant journal nine hundred said my occupation right now is unemployed and she had a civil service background there's no representations about what it meant to be a retired carpenter and what that meant so i'd like to just put that on the record i don't think the government wanted healey to testify i think they just wanted to put it out there so they could tie in some gaps because if the government at that point wanted to actually have healy testify  there was problems and now if we go back there's going to be problems with the nine one one call if he really doesn't testify because now there's crawford issues because although nine one one calls can come in if he doesn't testify we're going to have to have a big discussion about what gets redacted out so i think that the government overstepped i think judge rawlinson you're exactly right this is an odd situation to have a third prosecutor step in and give these advisement  you broke the law you're in trouble and i think the only way that this can be remedied in this case is to grant mr felix a brand new trial and i'd ask the court to describe please do that thank you all right thank you counsel thank you both counsel tell your helpful argument this case is submitted for decision by the court the next case on counter argument is navarro versus sessions