illinois claims that emerged during proximately seven years of discovery in litigation of this claim before the district court here in st louis although there were some disputes about some of the facets of the claim there are clear to clear violations one is the brady violation regarding the undisclosed payment to the state's star witness jeffrey shockley the other thing the other due process issue that there can be really no serious dispute about is that mr shock ey lied at the trial when he told the jury that he had disposed of his gun that was involved in the shootout that led to the death of fredd the for him to stay in a hotel on the other thirteen hundred appears to be for rent on a new apartment for him and his mother and this didn't come to light until after the hearing when  some things came out and this these documents were disclosed to to us after the hearing we had some evidence that he was paid but and it was interesting because these checks were on two different sources one was some sort of asset forfeiture account from the st louis city police department back and another was through the victim services division of the circuit attorney's office and clearly this would be brady material under the bank's case the supreme court case and under several precedents from this court and now if that had been denied the witness denied it and that would have been really effective in teaching that he he denied that he got anything from his testimony and was doing it solely out of duty and  loyalty i guess to his friend who was killed but i think the important thing to keep in mind is that would have cast the case in a totally different why because there was really nothing done to seriously damage you're hearing in this in this case yes there is an evidentiary hearing in this case and in fact the what you please tell tell me briefly what facts were developed here that were not before the panel  and also there is another aspect of the claim involving mr shockley's agreement to testify against his own brother and vehicular manslaughter case which but that was discussed by the panel right there so those three thrown the gun away and never retrieved it when he got arrested with the gun three weeks later and ballistics matched it to the shell casing the scene and i think if you look at everything cumulatively this would have all cast the case in a different light you have to keep in mind too that this this was a shoot out among multiple parties and there's no dispute that the person who died fired the first show i think there's obviously probably more to this than either of the state's witnesses would admit but the fact of the matter is is that jeff with all of this evidence it was a cast the case in the totally different light by suggesting that this whole case was manufactured by jeffrey shockley to get himself out of trouble because he had a pending charge at the time and to benefit he got moved out of out of his neighborhood to apartment in st louis county at the expense of the state and that was not disclosed and what was a district very much the district court conceded that there was a brady violation and tell that it was not material and i don't think there was there could be any dispute that that was brady material and it was suppressed because the record clear wasn't provided to us until there was some evidence came to light during the hearing and then i think the attorney general got access to this these documents that became part of the one i don't think that the court considered it in conjunction with the other due process claims but i think the court erred i think in in overstating the strength of the state's case and also the way that this evidence could have been utilized to i think utterly destroy mr shockley's credibility when you also look at the facts where it's clear that his attorney continued his pending felony drug and weapons charges until after the the trials of mr shockley and his codefendant and there's no ten iraq and then there's a notation in his files that the district court no at page twenty four of the opinion that his attorney told shockley he would benefit from testifying and he would continue the case his pending case until after the trial and his notes indicate that it that were disclosed and i think the court also made a mistake that there has to be some sort of tacit agreement in there to any understanding or hope for leniency  interestingly enough there was a case a few years ago from the supreme court of missouri where they found reversible error on a direct appeal because the defense attorney was not allowed a lab to cross examine prosecution witness about is hope for leniency on a pending charge despite the fact that there was no formal agreement that was state vs clarke and then there was a recent opinion written by judge higginbotham from the fifth circuit tass and vs kane that says there's no requirement of even a tacit agreement that at the key issues of the jury was misled about this witnesses credibility and and that's borne out by the testimony of both the prosecutor and the defense attorney that they both knew that mr shockley was going to get probation at the worst and maybe even a dismissal of the charges and thought i would have thought that it would be and usually is a tactic a lot from my experience it's better to bring all that out in the open because a jury i think is going to wonder about something like that but it's a common practice i've seen so many times over the years i can barely count them they say there is no deal with the witness and then lo and behold a week after he testifies they march and then to court and he gets probation or gets some other deal of a similar nature and i think that's the situation the missouri supreme court this discussed and clark and that judge chicken botham's opinion in pass and suggested that that view is also supported by such agreement but she didn't say that in fact if you look at page twenty four of her opinion she basically had to concede what i just said is that there was an understanding that he was going to get probation page twenty four of the opinion it was taf indicated taf was mr shockley's it was clear he's not going to get anything worse than probation i think they had meant as a matter of law but that's what didn't know that and that's the whole point lots of sort of legal custom but here that's that's known to everybody presumably or at least within it can be discovered by i don't think your average layman would know that if you that's a bit of an open question that maybe one of the next issues the u s supreme court takes up but i see i'm well past my time and i'd like to reserve mother remainder for rebuttal thank you thank you may please the court i'd like to address judge loken question as how do we factor in like versus deal i have a lot i cannot hear you i apologize your honor can you hear me now ok i speak better into the no agreement it's undisputed that there was no formal agreement but the district or did find that there was no task is no mutual understanding here the only thing that could possibly be gathered even though the witness mr shockley testified look i was going in i was pleading guilty i didn't know what was going to happen i was going to throw myself on the mercy of the court his defense attorney testified like i would think most offense attorneys were the state wasn't willing to give us a deal i thought maybe the judge would help us that's not discoverable or required to be turned over by that would require the state to somehow know what could have happened or what could have been communicated simply between defense counsel and his client the district court did not clearly air in making that finding and a panel of this court has already agreed now as to the undisclosed payments the district court in the prior panel assumed the material should have been turned over but it was required under brady because it's not material trial additionally the district court was correct also in concluding that it wasn't prejudicial up there were other evidence in addition to this testimony including the fact that obviously mr stewart independently recognized and identif is regarding an alleged perjury testimony claim that jeffrey shockley testified that he did not go back and retrieve his gun first i think first and foremost correct that that was not discussed in white however the district court considered this claim in the context mister brady claim that the state failed to disclose the july first two thousand and two arrest in the ballistics the district court concluded that that information was in fact disclosed and in support of this testimony the district  pleadings and the district court that his attorneys filed additionally to point out i think is most compelling here is that trial counsel questioned mr shockley at trial regarding the scott she argued to the jury that jury already had this information in front of it and as the district court correct quite correctly pointed out it was very tangential you know the fact that mr shockley may have tossed his gun after this gun fight ensued and at some point went back in to retrieve y may have been less than honest that he claimed that he tossed the gun and he didn't go back and retrieve it it was not material it did not affect the outcome in this case but really this court should have cause to really pause to really consider these perjured testimony fifty ninety motion the only comment that he makes is that the district court should have considered shockley's excuse me smith or stewart alleged false identification which the district court found was not credible and rejected in the my remaining time all of i would strongly dispute the fact that this perjured testimony claim was known i think i addressed that in the reply brief pretty extensively but the other thing there is no even if this was known to trial counsel which i don't think it was if you look at the context all all all that was known was that drome johnson who was arrested with shockley with a gun three weeks later was a potential witness and but the point is there's a lot of case law indicating that the standard although brady and nate who in perjured testimony claims overlap even if trial coun in his testimony and and it was in the district court's order that he had had he had those police reports indicating that shockley lied because he was arrested in the car with the same gun he used that night but he did nothing to correct it so i think that and and the standard for prejudice for perjured testimony is much more lenient and favorable to the defendant than breakouts up where where was there evidence or hearing understand the where you get the brady aspect of this was in the police reports and the prosecutors are obligated to know that brady standpoint but that doesn't make it knowing you support your testimony the  with that claim before we the parties and the court in september two thousand and sixteen it was we made a motion after the hearing under rule fifteen to have the pleadings conform to the evidence because there were several curveballs thrown in that hearing but that was one of them that mr what happened to that motion it was granted the judge granted the motion it's on page two of her or her or her opinion i think in a footnote we so i and remarkably the state hasn't argued that she abused her discretion in doing that  shockley testified the prosecutor testified after mr shockley and admitted that he had this evidence and certainly the police knew about it as well which is all you really have to establish for a knowing use of perjured testimony but to versus illinois in giglio versus united states they have a duty to correct perjured testimony after it comes in and without regard to materiality does that that's  a distinct issue without a failure and one of their witnesses is lying they have a duty to correct it and bring it out you can answer your question or not without regard to materiality that's not that's not the prosecutor's call that's something that a review that the trial judge a judge or a review in court on appeal whether it's material or not that could be debatable but when you witness cries i'm sorry go i haven't read it for years taught materiality and perjured testimony is there any reasonable likelihood it could have affected the jury's verdict ok and the jackson decision from the ninth circuit it's recast that is saying usually a reversal is virtually automatic any time a prosecution witness commits perjury i c m out of time if there are no other questions i'd respectfully request of the court reverse the district court and