chief the first time this ever came up was after the trial has started and if you look at the the record of the stipulation that was up presented to the district court for trial there was no mention of the case in chief limitation the defen stipulation because we didn't give all twelve point three notice we never said that was the only time will twelve point three has ever been mentioned is on appeal and it's a last ditch effort for the government to try to get themselves out of the problem that they created now base think they might suggest that later on as these two times i read the record of the government clarified that they were not going to call hagar in their case in chief and that they had spoken with the defense counsel about that at the time of the trial when he was called the defense attorney object not on the law but before that when there was some conference with the court as i read the record and the government's represent were the words a duty for the district court to make up for council cellier to request instructions on defenses but need to be notices that it's a kind of back my twelve point three question confused me that if we get to twelve point three notice that a lot of things get cure here the government the government is is has no defense whatsoever to not explaining why you may need to call hager and the court has no excuse for not giving the for not giving instruction for things we have that you have across the bridge that that you have very good defense i don't think you know factually they're going to win on that the fans but if they want to present that the feds they can go ahead and presented the facts when the prosecutor he was on an actual note i mean the point of rules one point three so that the government have number one notice of the defen her that she was not a confidential informant that she should not do anything illegal and that she should contact him with any information burt claims that the agents instructed her to get information and told her not to do anything illegal for the government to set up in the first place i mean these are strong public authorities that certainly much stronger than her so if a public authority instruction was required to be given in birth it's certainly less required to be giving in this particular  all those typical show options that are always given in cases were given to this particular jury and discordant viable specifically made it clear that stipulation five parties do not create the law for the jury to decide they need to be accurately instructed on the law made that argument does not circumvent all the specific instructions well let me get a little more specific perhaps suppose the jury was to say you know we don't believe that hagar told her these things therefore we're going to convict her and you're saying but had the public authority instruction been given a public authority instruction would have said that if she rea follow the law as the judge is giving it to us and the law that the judge gave to them was her whether she thought she was doing something illegal or not does not matter then that if the judge never instructed her the jurors in a public authority instructed so if i'm a jerk and obviously these instructions and was in there having our deliberations i say well you know the prosecutor said we should quit if we believe her and i kind of believe are but the judge right here so we can't listen to the prosecutor we have to follow the law that the judge gave us and the law does not allow it please the court shannon ryan for the united states addressing council arguments in the order presented first with respect to the issue of calling deputy hager in the government raises two points primarily on this issue first of all with respect to what were the statements by the government defending characterizing them as a stipulation not to call deputy hager and first with respect to what were the statements or representations and your honor had specific questions about what the record reveals the record reveals the following the first statement by the prosecution concerning  involving an entirely separate matter the prosecutor discloses that in the january seventh oh three letter to all of the defense attorneys at this point there were six defendants in the case defendant there arguably intend on calling him taker as a witness at trial that's a defendant's expert for the record thirty seven after that disclosure of the internal affairs investigation regarding deputy hager and those allegations at the next status conference defense counsel says on january thirteenth oh by the way our entire defense is based upon this deputy and at that time he does not say he's calling the defendant at not plan on calling him as a witness in our case that's a defendant excerpt of record forty three so at that stage of the proceeding we have this internal affairs investigation which is hums why the government says we don't plan on calling this individual the the testimony you would provide us the government later explain is essentially duplicative other witnesses and the defendant says oh let me seize on this i will hold up you hagar by the way i'm going to claim that my defense is based on conversations with him never again saying public authority all the prosecutor says well i understand she's going to claim some sort of authorization or something this is the first we've heard of it there's nothing in the record to support i understand is put on the record that's a defense experts of record fifty four and the parties never follow up with anything on the record admittedly a failure of the government the next time that this addressed on the record it is during the first day of trial and following opening statement at which defense counsel refers to deputy hagar and his terminations the government state to what these off the record discussions are that the government does not play que as a primary matter this court is restricted to what the record is and the government the clear record that it should have the stablished but the record that years before this court in particular those comments on the first day of trial which local flea unrefuted by the defense and to later in the trial when the issue seventh letter in which they disclosed that information about the investigation of of deputy and in the first paragraph it says however the government does not intend on calling him as a witness at trial there was there any other time it was the government committed   the might be before the district court so it was placed into a transcript where the government said we're not going to call here and which you didn't qualify it by saying in our case in chief there is nothing more formal on the record as i said following that letter there is statement at a status conference the government does not plan on calling him as witness we have the defense's invitation to put a stipulation on the record nothing is done and then we have asked for opening statement governments counsel government counsel explanation we had clear discussions prior to trial they involved in excrescence limitations to cases and those discussions which are on the record before the district court defense given that the government cannot anticipate fully what a defendant will say or what evidence a defendant may present and tell the defendant's case that that is inherently the nature of  correct although the government would say that it falls short of that for reasons i'll discuss regarding the public authority jury instruction the first time the government was on notice that any issue concerning hager or any issue regarding a not be calling here would that bind the government if there's a if there's a development such as the the the defense announcing a new defense of the government hadn't anticipated what the government have to do to get out of a stipulation like that once it's made it well the standard is very very high court the government should be released from the stipulation and in this case the government would suggest that the more appropriate inquiry is not whether to relieve the government of its obligations if this court were to find that the government obligated itself the government is obligated the government submits that at that point the question is defend his position is reasonably rely on the statements on this agreement what she terms of stipulation she reasonably relied and the way in which she reasonably relied was she did not pursue  eighty five the record shows that that reliance in fact did not occur or that defendant did not rely on any statements of the government regarding hagar  a files and the reason the record is clear in that regard is because the district court and this is during the trial that reporters transcripts one twenty eight and one thirty three to thirty four the district during trial as this became more developed as an issue the district court ruled that it agreed with the government that there was no limitation on its rebuttal case the the statements  of all of the facts who gave the information to the prosecutor the prosecutor at that point invited the defendant to do that to subpoena those documents if you know that witness to obtain any other materials defendant defense for example cite in support of its position the shapiro ok and in that case but the revelation concerning the government's use of defendant's park convictions came after defendant had testified and so the central rationales underlying navigation was defendant had testified the bell had been wrong as two defendants testimony in reliance on a representation in this case defendant had not testif borne by the evidence the rationale of the government at trial was in light of the timing of defendant's revelations concerning this authority defendant there's no in light of that ultimately equity supports the government's position defendant should not be permitted to testify completely immunized from any sort of respon she could not have suffered any harm out of any alleged reliance the government's admits that the district court's ruling on permitting hager to testify in rebuttal should be a par case and would respect of the program and urged the parties to have some disagreement with respect to whether actual authority is required and this notice issue that defendant failed to comply with rule twelve point three already would not in itself bar any defense but the perspective the government and the government submit that's the perspective of the defense given that no notice was given no jury instruction was i didn't i did not give her the green light to do this this was not part of our investigation and the only reason that hagar is useful for that is if there's a public authority the facts so on the one hand you want to have begun as a witness that's your first argument on the second you want to argue that it's than the defendant in berne specifically in defendant's direct examination she testified she wanted to act as a confidential informant and she was hoping to make more money so no one including hagar told her that that was any sort of possibility that's what reporters transcript for ten and four fifty two and then the senate testified that she told her by telephone of a limited portion of the activities charged against her that's at four o nine and she in it subsequently at reporters transcript five fourteen that hagar told her not to go forward with this deal now the government could have of the evidence of guilt the clear evidence of her recent fabrication of these claims regarding hagar but ultimately and this goes back to the equity position if defense as i spoke to hagar twice on the telephone and the government's evidence that never occurred that that is in fact a lie the government has a right to offer its evidence in contradiction of those statements and that if the court reviews hagar's testimony in rebuttal that the testimony of hagar and the questions of the government were very very limited the questions went simply to those two telephone conversations with just bennett and those conversations went to not just the formal public authority defense but they they didn't go to her innocent intent claim which the government concedes she made she was offered every opportunity to present evidence in support of that claim that claim as opposed to the formal public authority defense that claim was argued and submitted to the jury and they  that i can't i can't say that's a terribly powerful all stipulation not to call him under any circumstances it doesn't say in its case in chief but  but it actually isn't it's clear that they're not going to call them at all then this is this is not bargained for this this is this is just simply and advice that we're giving you that we're going to give you disclosure about hager we're also letting you know that if you're thinking about going and spending a lot of time reading these records we may be able to get some time because we don't tend to have a column if you don't intend to call them then there's no reason to go get spend the time getting the records now one week later you come back says we're going to offer public authority to fans and all of a sudden after that the government does come forward and say you know going to look into deputy hagar's terminations from the sheriff's department i was not able to get that information i have to go through the process of subpoena and that is going to take some time however i spoke with u s attorney miss wright today and since we received them i'm from the u s attorney's office of the government is not going to