and all those seated before we begin we will observe a few moments of silence in memory of a part of president ronald reagan to the attention that the chief investigating officer on the case it did indeed witness tampering so this court ordered a further hearing to determine what the effect of that would be and it ended up in front of the district court again the first issue i would like live rests with respect to that is whether the defendants were denied their fair rights because their discovery was limited remained hearing it's clear that in order to have had a full and fair hearing on at the remain and that there should have been further discovery allowed with respect to the officer who had been convicted of witness tamper however his name is pronounced testimony in any respect material well first of all he was the he was the lead office rather working plus there were numerous discrepancies with respect to the other testimony for example discovered it was needed to find out if this officer had been involved in any other kind of yes absolutely he had and why would it have been material in this case given the other testimony because because he the question is whether these other officers would have been influenced by this officer and there was so much discrepancy down below in the lower court where general discovery request was the night you have when you say you were denied discovery i want to know in particular what you were denied access to that would be a material realm i think the specific thing that was crucial that the that was denied was the fifty two file investigating officer had been involved in on drug transactions and what was important about that is that that that wasn't a wild request that was put into issue by the government government notified the defense of that the government put at least two witnesses on the witness stand regarding a review of these files that turned out one officer didn't want to reveal it because he thought he had a conflict of interest issue now you asked specifically to see the files yourself well trial counsel specifically asked to have an yes to review those and or to have an investigator appointed when i can't understand is how to hiles disappeared in my correct in reading this record the files disappeared from the prosecutor's office till the last part of there was testimony that they you know where they were that's correct was that me who didn't know where they were the officers and one of the government i have to say about that who was the prosecutor that supposedly had these files who was a prosecutor i think it was like to think it might have been this prosecutor but i don't know what to recycle remember at that hearing what their response was to the statement that they're missing i can't remember that  part of the transcript but the defense was willing to sit and wait and have them go find of are there could have been it during could have been continued but to me that was important because otherwise we have to think that this officer all of a sudden started on a by the government there is no reason why the defense should not have been allowed to look at those and that was the most specific and important piece of information to be specific with your question the other was there was a request that's true there was a little lag time and it does appear that the defense might have been a little lax in trying to get him although the defense attorney did state that he had that after issue and that was the reason that he didn't wear a little lax is putting it mildly i mean the court said you can have her marriage testify but it's up to you to get him and then nobody got him that's right and i think the defense lawyer had a health problem and the problem is to punish the defendant because the defense lawyer might have been a little they could have just put it over for one the other half they have hearing in another two weeks to win and really been inconvenienced any of the pardons but but there's not showing that rumors knows anything anyway this letter in general the it's true the letter is vague but that would have been second specific piece of evidence but even without ramirez i think the key thing with the fifty two files particularly since the government put in testimony that mr abbas had no criminal record going back hundred ninety five based on their review of personnel files and other information so the very least that could have been reviewed it might have shown some irregularities the one nine hundred ninety five date comes from a declaration file the other the other issue of course goes to the effect of the boss conviction and if this court was to find that credit those witnesses we don't have any leverage at all to undo this credibility fine but there's there's just there's so many discrepancies that really i think would have probably come down or ask us to redo what the trial courts do not want an appellate court does that when we have a witness tampering there's some cases that just don't smell right and it might have been this court one of the judges that you know like a smells like a dead if you try to trial courts can smell that well we can't i mean i think we can smell it  i think we can smell it was enough from the trial court but there were so many regular days with mr abbas and i mean one of the logical things i think if the court would just it's always bothered me in the case i understand the in all this but it's so illogical for two defendants to have been cooking meth in a hotel room knowing there's police outside to walk out of the room and leave the door wide open so they can smell it you're asking us to assume that math people who cook and use math are logical well i mean that's a pretty tough and somebody didn't refuse to make that in be logical i think it's just common sense where they're supposed to stay in there forever well no they're supposed to close the door like they probably in this case did and there was a lot of testimony that there were door was closed and i know the court can't really weigh the evidence but i think when have and that's what i would ask of course remain for a hearing on whether or not mr buses would now be entitled to  five i mean does that bring to the jurisdictional question i was going to ask about later but it's a natural say right now i'm not sure that i quite understand how we got here and i'm not quite sure but i'm persuaded that we have said you this procedure doesn't necessarily isn't the surly available in those kinds of cases so it seems to me looking at all the proper remedy all along was twenty three fifty five we don't have a seal in this case and that's true we don't have agreed with you and sent it back down but here we are now you're arguing that twenty to fifty five is our only remedy and this is going to have to occur again on the twenty to fifty five so  i would raise it all except that it is plea and under materials that were made available voluntarily to the defendants all information the information in the plague not only death the government moved to unseal the district court trial the government voluntarily produced the search warrant in the past case when we close files frankly when we close files we give it to the secretaries and i believe they generally retain correspondence and things that are not publicly filed these were federal files though they were there were st constructed in the first place by ontario police department in all likelihood they probably still have those records but there's no reason to do that and that is because the defendants did have abundant materials available to them that the government letter that the defendants produced was woefully inadequate just so that ramirez would have something material to say at the first hearing which is when it was first raised defendant's the testimony of right was that it had something to do with evidence and something to do with a search warrant there wasn't even any allegation that boss had perjured himself in that case there were just no details i've talked to richard right now have a similar experience with a boss similar experience creating i mean it's manufacturing evidence you know it's it's kind of distressing because that our history is littered with cases of bad police ninety nine percent of police do what they're supposed to do if you look back over history you find a whole series of cases where officers  manufacture evidence for one reason or another and here we have a case obviously with a bad officer i doubt that you believed anything that he said about what he was doing this is probably not the first time he got caught doing something like this and so yes you're right we do have a record where   they did want to find out if oz was probably before october two thousand involved any prior incidents of misconduct and those fifty one files that's not the only possible avenue to explore that the agents testified about other avenues that they did explore to make themselves comfortable that there wasn't any prior misconduct i thought they were financial records going back a year they found out about contacts in november two thousand so the records that the i r s looked at went back hundred ninety that's two months after the suppression hearing in this case they looked at his credit card history and found that it got out of control i mean in the first six months of two thousand  only developed in the first six months of two thousand when they looked into his financial records that when he generated these credit card bills it is because he started having this affair with this woman and they took many trips and he had many other expenses related to that affair he testified that the government did ask him to review he said that he did not closely review the fifty one files because he felt uncomfortable he had signed off on those however he did testify that he did review past personnel files and his ontario police department internal affairs or high school so even if there had been some allegations that were made against bob that were not sustained that should have surfaced in the government's investigation and finally that ontario police department after he also testified that as one of the two internal affairs supervisors in ontario if there had been any complaint of planted evidence or perjury against auster bards that would have been brought to his attention and they were never one files the agent david smith who said that he reviewed these for an hour he said that he reviewed them for an hour because they're not very helpful without much other information and it's not clear why just a review of these records would allow defendants  court and for that reason this court can take comfort with the knowledge that the district court did not clearly err in finding that there were no false statements in the search warrant affidavit and that the discovery would not have been material because it is a court has already made clear that it did not have vest it might have taken a different look at this get you a sion and then just it's hard to nit pick on some of the facts that my recollection in my notes in the is to have with the manager of the hotel when he was cro and she said that the door was shut and that the officer boss said i'm going to go get a cheap came back and i had one and the other thing is in terms of the discovery problems last night i just i checked on you know let's just see what happened with mr ramirez this case because united states versus in which johnson