this is a case about accountability and how this court in this case and in future cases should measure that accountability for the governments to be frank about it bad behavior and presuming and preserving evidence now i just like to say with a provision that i understand that man was the county attorney for the government was not the trial counsel in this case to want to make that clear but regardless i believe that the government's conduct in this case clearly amounted to bad faith and as such the proper remedy in this case should have been dismissal the indictment rather than simply the remedy that was chosen which was an adverse instruction to the jury and that that instruction did not correct any sort of error or negligent error that was made and in fact bad  citizens that were made by the government in this case and i would further add your honor so that the record that we have in this particular case is unusually good the factual record in terms of the consequences to the defendant in this case and you tell him rather than the pallet and how it in fact ultimately impacted her trial because right at the beginning of the did not learn of the destruction was my heart as to know and her through her counsel did not learn of the destruction of that cell phone until three months after it actually happened at which time the government notified think they were brought out in front of the magistrate judge and they were further brought out elaborate it looser dated the consequences of those errors were brought out at the trial in which case the government did not simply argue that this man horowitz was calling someone on her cell phone and could have and that that person in some sort of argument but in fact the government in this case actually brought out  exhibit showing the number of calls and confronted that offended while she was to and under cross examination the effect of these twenty three calls can you justify where these calls are making it and in fact giving the impression to the jury that the facts behind these calls were of that showed her her guilty need to the effect of who could she possibly be calling this many times during this period of time you're right well let's go back to the she was notified as soon as the government learned that the cell phone had been destroyed the cell phone was where in storage someplace in the cell phone as well as the cell phone the nokia possessed by mr lopez the material witness was in government custody at that time and continued to be which which is fully routine practice for cases  this district many of which i have represented defend it's myself i was not the trial judge in this case but that's really difficult practice in this particular case and i would stress again as i pointed out it is practice to store the as i think the the just your court neglected to find in this particular case there was in fact bad faith in the practice of the of the agents in the government in this case because they knew right from the very day on june twenty sixth two thousand and fifteen that miss mourn her as was arrested that this phone this cell phone was significant in terms of her defense because of what she told them in a hour long interview which is part of the record here that she was she denied any culpability in this instance she told the agents that she was going she was taking her taking her grandson to be well the reason your honor is that in terms of timing there is no reason that mr that the trial counsel in this case would have had any reason to believe that the phone would have been destroyed in this case as the government conceded at trial and at the hearing mentally this was a mistake this was this was an error by the government this is not typical procedure and this is something that the agents was not typical procedure the destruction of the defendant's cell phone that cell phone would have been pursued preserved until the end of the until the end of the trial it is not a typical procedure to destroy a phone at that maybe but but but there was a finding that it was not in bad faith i just don't see you know it's in storage and something happens to it and it's not there anymore well i don't know what you do with that i would point to the knowledge you very clear based on everything that we have in the record of this case that those agents knew about the significance of the cell phone for two specific reasons number one every agent knows and every attorney knows in twenty the usefulness and many faceted usefulness of a cell phone in any criminal case and secondly the specifics of their knowledge was clear to the government at that time and there's absolutely no reason why that phone should have been destroyed at that time and their their failure to prevent the destruction of that cell phone through any sort of error through any sort of  well i would point to the record everything that was known to the district court judge at the time should have pointed to the district court judge to make a determination that there was bad faith the these agents for the fact that you know what there is there is no need for this court to impute bad faith or simply assume that that was bad faith i would i would point to that record specifically  everything that these agents knew at the time of the phones destruction suggests that there was bad faith in the destruction of the cell phone in allowing it to be destroyed this will have a little problem when she says that if she was job pointing out the many different reasons in many different ways in which this specific text message is text messages would have been right i agree with you did it did a very good job and got an instruction that said you've heard testimony the government destroyed with that is that that instruction is no substitute for the loss of evidence that would have allowed the defense in this case to rebut the inferences that were clearly made and intentionally made by government counsel in this case by asking the defendant repeatedly were these twenty three calls come from how can you about this and even if another witness had been call to supplement the the defense's case here that in itself is no substitute for the ability of the defense to show the messages or lack of incriminating messages from the cell phone actual or or any sort of messages to that effect  counsel we'll give you a minute for a bottle you see that your time good morning your honour's my name is erica mccallum and i'm an assistant u s attorney from the district of arizona in tucson i'm representing the government i think that the defendant is overlooking a key issue in this case here magistrate after doing conducting an evidentiary hearing made a ruling recommendation that the motion to dismiss be denied and also recommended that the adverse inference instruction be the district court did allow the defendant the right to reraise only the adverse inference instruction if at trial and i'm quoting the don't the evidence demonstrates that the defendant has been quote unquote materially prejudiced by the destruction of our phone ok so no objection to the our in our district court says no due process violation no bad faith that issue is waived this court should not entertain it as for the adverse inference instruction at trial the district court considered the evidence and said i think that there has been prejudice with regard to showing whether or not the defendant had another reasonable means of coming up with comparable evidence in other words we don't have a text messages we don't have the voice mails we don't have information on whether or not phone calls were answered or not this may raise inferences with the jury that the evidence was incriminating and the court made a finding again there's no bad faith there's no information that the information was exculpatory therefore i'm giving that curative instruction did the jury's presumed follow it and therefore if there if there if it was indeed prejudice it was secured counsel so what case do you base your argument on that the that there's been a waiver of the failure to follow objections doesn't automatically weigh the ability to challenge conclusions of law if this court were to consider the issue as i stated my answering brief then i think there's there's no finding there's there's just there's no evidence of plain error because the defendant substantial rights were not affected and because there was no error however i do believe that  this is this was an affirmative waiver of a known right by making the decision not to object to the republican how can an affirmative waiver be evidence by a failure to object that's the problem i have with your argument that affirmative seems to imply that there was some positive step taken rather than a failure to object usually if there is an affirmative waiver it's by way of a think the case says that if you don't object you have reported recommendation it's a waiver it's deemed a waiver if however again and i don't want to waste our time to repeat myself but i do think even if you do apply that clean air standard the defendant doesn't satisfy you sometimes we use the words the word waiver loosely when we really should use forfeiture right as opposed to waiver so the fact that a case used the word waiver isn't necessarily conclusive in my mind as to the legal effect because if the supreme court pointed out that the that word has been used quite cavalierly  to dial the cell phone number goes down to download yes oh yes yes yes as part of as part of a yes thank you as part of the evidence you're hearing the party stipulated because the government agreed yes we were negligent in destroying the phone so let's see if we can obtain the information that was on the phone so the judge the party stipulated the judge ordered the numbers were obtained there was evidence at trial that indeed and again the defendant initially argued this is a case this is a dog that didn't bark case in other words what we of them were anonymous phone numbers they were the government was not able to locate the individuals that those numbers were assigned to however the defendant certainly had the subpoena power and the numbers and could gave leave to the parties to raise this issue again and those were the words in the report recommendation and in fact the court did do that the court did in fact revisit the issue and the court the district court made specific its findings in that the court did not find which i believe court clearly erred in doing that there was bad faith but the court in fact did find that there was prejudice to the defendant by the loss of the sel are not here to argue the point of whether there was prejudice of the defendant that is clear that was found by the district court and we don't we do not contest that contention you have to give hurdle is back pay that's correct and we believe that this case the defense counsel did not ask for the preservation of the video that was central to that to rest offense in that particular case until nearly a year after the case has been pending yet the court this court did find that there was bad faith on the part of the agents who conducted that investigation because they knew about that they did they it just like in this case they conducted an interview with the defendant and they in that case knew precisely the import of that video yet they did not preserve it we have similar circumstances all right counsel we understand your argument thank you to both counts for the case you argue if admitted for anything about the court jester mail did you have been a final question for