morning ladies and gentlemen joe johns and i are particularly pleased today to be joined by judge the tag lee of the southern district of california which leaves me between two san diego residents are the odd man out on the panel but i'm happy we're very happy to have here tony western watersheds project versus united states the submitted on the briefs and well we'll hear arguments now united states versus lopez rebus counsel morning my name is josh hamilton i represent mr lopez a rebus if i could i'd like to reserve about six minutes rebuttal manager on time i will thank you this case is the culmination of a  long term multi agency multi state investigation into suspected members of the sinhala drug cartel operating here in the united states the investigation relied heavily in fact centered upon directly the efforts of a top echelon criminal informant by the name of joe mata in connection with his testimony in this case he was paid to believe two hundred  fifty thousand dollars by the federal government prior to trial the prosecution had disclosed or at least at the time represented full disclosure of his past history as an informant for the government both state and federal dating as far back i believe to the mid to late one nine hundred eighty s the defense team went forward with the trial preparation in particularly the formulation of developing cross examination of particular witnesses and more importantly developing the theory of the case if you will based upon that information then in the middle of trial with the informant on the stand he reveals to apparently the surprise of many people in the courtroom that in fact he had also been an informant for the da for several  years from i believe two thousand and five to two thousand and eight and only that he was paid to leave he testified before a grand jury although that is murky i believe he sought and potentially obtained immigration benefits for his wife although that is murky point is none of this information was disclosed and none of it was known to the defense but then the trial judge ordered a recess ordered production of the documents and there was opportunity afforded to view the documents before cross examination so what's the problem at that's not entirely correct the way what happened was initially the government said we don't know what he's talking about that that probably not true he just used a figure of speech the figure being i was signed up as a confidential informant in quotes first the government said he there's we have no information on that the district court initially seemed like it would declare a mistrial then hand that it may be declaring a mistrial at a usa came back in the court and said i just got off the phone with general counsel in washington or i may have been phoenix general counsel for d a he was in fact signed up informant on trying to get those records those records were eventually the court certainly had them they were given to the defense heavily redacted and i think it's important we were never allowed to actually take the documents we had to leave them at that with the prosecutor at the end of the day so we did see some of it albeit not all of it and i think something that's important is that this may just be the tip of the iceberg the point is the government did not discharge  under brady this is dyed in the wool categorical impeachment information the fact that an informant was paid by the government for his testimony and i think we had every right to be disclose this information that we weren't but how does that change the theory of the defense case you already come into the case with the c i who's been in the news cooperating and you've got all the same bias impeachment information available so i don't know how the theory of the case really changes how the cross examination changes in that ultimately with time you were able to ask further questions on this so there's really two things there you could address if you would read my and then i'll try to you to some extent the court is correct your honor's point is is well taken in the sense only that yes we were able to resume cross examination however we were never given full disclosure and as far as the theory of the case is concerned i think that's really the critical point that the theory of the case going into that trial for what it was worth was lack of identification of the defendant as being the person who the informant said he was and in reading through the briefs there was there was a shift they thought he was one person and then later he was arrested on a different offense and years later after the after the operation had concluded then it was then the informant said that was the guy i originally thought was that guy so that was the a operating defense theory the disclosure the substance of the disclosure isn't just that this man was paid by the d a in the years two thousand and five to two thousand and eight as it were it's actually the facts  what is really important not the fact that he was an informant not the fact that he was paid we already knew that and any competent attorney is going to cross examine a government witness with that information so if the court is correct to that extent it is furthered that impeachment but that's not the theory the case the actual substance of the work that this man did for d a two years prior to the work he was doing for osa def organized crime drug enforcement task force and this case is almost identical to the operation and that we were in it we were unable to ever elaborate upon he in this case procured a tractor trailer drove it into mexico had it loaded through his contacts in mexico then drove the load into the us and the operation to sum it up which is to drop people out of the out of the shadows is exactly what he did in the two thousand and eight case where the d a he got a case as a commercial dump truck into the exact same thing now if this if this in particular informants m o if you will is to do this operation in the midst of his pretty sizable drug trafficking enterprise of his own where he was making upwards of one hundred thousand dollars for each bo cash run i believe making about half a million for each marijuana load he drove to detroit and that he drove to baltimore now in the midst of this he goes and sits down with d a or any informant agency and he's absolve importantly b he conducts the exact same operation to quote the district court essentially took weeks if not probably months of trial preparation and condensed it down into an afternoon and that's that's the year there needed to be a mistrial so that that information could be factored into the theory of the case but more importantly trial preparation in general by that i mean formal request of the government to disclose  mean motions to compel filed with the district court i mean subpoenas i mean calling witnesses and i mean crafting a much different theory of the case and we were unable to do that the government didn't disclose this information that it needed to disclose what's more important is that the  homeland security handlers of this informant testified that they vetted the informant when he signed up with his side if there is to the extent that that information being that he was a da informant just two years prior paid money ran a huge operation into the suspected members of the drug cartel and he just plumb forgot and didn't mention that while he's being vetted to his homeland security handlers we would need disclosure request and so that entire process wasn't it was there any reason why you couldn't of recall those agents to point that out to them it seems to me you could have made them look really bad on the stand under your theory of the case we've already completed the  interviewing of i'm sorry the cross examination of those particular witnesses but there's other witnesses that we would have need to fleshed out again we were committed to our theory of the case of the case that we had started with from the start and it we were left in an impossible situation because that's what a mistrial is for is to prevent a manifest necessity what happened was the district court tipped its hat to those concerns and then did not allow the  mistrial to be declared which was what was necessary to prevent the manifest necessity from occurring you were part of the trial team is that correct that's correct i have haven't read the transcript i thought you in this one and it did a very good job of making this guy look like a sleazy closing have been different had this information been disclosed which it should have been there's no doubt about that my mind tell me how it would have been different it would have been an entirely different trial it's not that that particular questioning of a particular person would have gone one way or another or that the where the closing would have differed the entire case would've been put on differently had that information been known and been able to we could have hired investigator to track down those things find the we don't know did this person testify before a grand jury he did makes one so i spoke in front of a a large room there was a prosecutor there are a lot of people there but no defense attorneys that to me sounds like a grand jury i don't have any of that information there was some some indication of immigration benefits that may have been conferred for his wife i don't have that information so to the extent that there was some effect of cross examination i would submit it would be even more effective to bar the courts freeze and beyond that the closing would have been different because the case would been put on differently if this man's m o is to go before the federal government and his absolved of his sins paid for his troubles and then conduct a very similar operation two years prior that i don't believe resulted in any arrests although i don't know i'd like to know that and i think i have a due process right to know that to confront him to cross examine and to cross examine him and more importantly to craft my theory of the case and i have four minutes left so i'd like to reserve that time thin please the court counsel my name is response we're going to represent the united states of america the appellee in this case let me address if i can a few of the issues that you brought up with counsel first of all the statement that it's not clear that immigration benefits retain for the wife that was clearly addressed on cross examination it was made clear no immigration benefits were obtained in fact the witness testified that they hired an attorney and because of how long the passage of time was they had gone gone with that attorney and got her naturalized so there were no immigration benefits and what they latch onto is that it was approximately nineteen months it was basically from april of two thousand and five to april of two thousand and six and then from july of two thousand and six to february of two thousand and seven that this person provided information no cases were made there were no arrest arrests that occurred was a fugitive that the witness learned about and advised the dea agents and they went out and arrested the person and the witness was provided benefits money for that information that was all brought out on cross examination to the extent that counsel was asked to said well we didn't get a chance to cross examine these witnesses the record reflects that after the documents were disclosed the c i was cross examined extensively concerning those documents but also the h s i control agent the agent that controlled he was also cross examined concerning those documents that cooperation what he knew about it what information he knew of and any benefits that he was aware provided additionally a record was made that there were no cases made there were no people arrested and the benefits that were disclosed  counsel they were able to cross examine the witness about that so from our perspective there wasn't a brave violation number one because the evidence was disclosed and number two the fence wasn't prejudiced by it because they were able to make extensive use of that information of previous work with the d n a that was disclosed in his mid trial was that working with the agents in phoenix d h in something x in tucson i think in tucson i say i think because the documents if you review the gist of that cooperation is this informant reporting to d n a i was contacted by out somebody they want me to provide transportation of marijuana i've been told that this individual is involved in this smuggling or transport or distribution of marijuana and so that was the type of information that was being turned over to the extent that the cooperation at that time tried to result in arrests there was one instance again where the witness was approached and asked to provide transportation that's what he did he provided a transportation network and they tried to to get that to work a quantity of money was provided by people that the witness had been approached by they purchased registration in items for a truck to arrange for the transportation but it never occurred and if you look at those documents you see that a portion of the money that wasn't spent was actually returned to the the prospective defendants if you will the money was given back to them so all that information was in those records it was available and to the extent the defense cross examine the witness and i understand their strategy some of the minutia of what was there just didn't matter if you look through all those pages of reports some it is quarterly report the preventive c s will continue to keep vised of information things of that nature so there was nothing there that based on this information they made a big case he testified at trial and here's the results and he got a large sum of money so it was different than what actually occurred in this case and if you look at the facts of this case the informant wasn't the main witness as far as convicting the definit he was very involved and the basic component for making the case but that's because he was approached and asked to first transport money and d p s turned him over to h s i h s i said go ahead and do that just to see if you're for real because the amounts you're talking about he did that he then came back and he said now i'm getting approached again to transport a large quantity of marijuana they said ok go ahead and go to these meetings go ahead and talk to these people so as counsel said we can draw them out we can find out what's involved the organization the informant authorized his phone to be tapped his calls were recorded and in part that was the very strong evidence against the defendant it was his own phone calls to the cooperator trying to set up a stash house in southern california trying to set up a warehouse in southern california they surveil meetings where the informant met with the defendant and other coconspirators from some of those meetings after the first money was  paid in in late july they followed the person that delivered money away that's how they discovered the warehouse in chino california that vehicles and followed to a house in law fontana that's how they discovered the money stashed house southern california as part of that investigation they were didn't find locations they were going to find people and probably as important as anything is that the defendant sat by with the informant while the marijuana and it turned out to be over nine thousand pounds that was brought into the united states and then taken to the warehouse in chino after that was delivered the defendant got the call that the marijuana has been delivered at that point he paid the informant the defendant paid a former almost two hundred thousand dollars as partial payment for of a range of transportation so that's the tripe of strong evidence that the defendant would have had to overcome in it's admitted in our brief that this small nineteen month of reports that was disclose that defense counsel made use of that was able to cross examine both of the informant as well as to control an agent were cumulative to the bigger picture of the monies that were paid to the defendant by the government for this case and also to the the jury knew the jury knew from from the get go that this person that was an informant shouldn't be relied on that he'd been paid that he'd worked off charges in the late one nine hundred eighty s he'd been charged with one kilogram of cocaine he pled to money laundering and got five years probation and six months house arrest that all came out so all that information was before the jury the complaint the defendant is that the jury did not substitute the argument by defense for the evidence that was independent of the informant and that evidence was overwhelming i guess one question i have an honor i appreciate your argument is just how does this happen in this respect and the information was available as this informant someone ran a database search in washington or somewhere in this information pops out in the computer i remember i was a prosecutor for a long time so remember so if you can kind of explain how h s i doesn't know that d n a is pain this guy just you know four or five years before the incident in question i mean just procedurally how does that happen i think it happens at the time and again you're asking me how i think that happen because i mean the records there for what occurred the control agent was specifically if he knew about it and he said no i didn't know he said i asked him if he was currently signed up and he said no the government had previously disclosed the cooperation free d n a when the informant worked off that first charge and i think beyond that nobody thought to say well what else is out there because of the fact that the informant had been working for d p s and was actually turned over to his side by d p s so they knew about the prior conviction i think that probably showed up in a prior check and they disclose any information they knew that he come from d p s and so they disclosed all that information and then they disclose what what they knew about so anything they knew about i think they disclosed if your question to me is why didn't they find this i don't have an answer for that but he did have a netas number did me i would imagine he had a native's number but i just i don't know enough about the procedure if you ran a native if if that would have come up as it was the counsel in our office that had to go back basically through chief counsel in washington d c to have somebody i think like do a manual check to find the file under this guy's informant number and once they found that the delay was getting those documents and once those documents were disclosed and again the description by by the defendants about how they had this if you read the transcript those documents were provided to the judge and the judge authorized the redaction which was the case law allows once those were disclosed to defense the trial judge even said you know what we're going to recess friday today at about eleven in the morning counsel you've got the rest of the day you've got all weekend and monday we won't start until one in the afternoon and certainly i have no problem how this report handled this this issue i guess why have the concern is that this information i'm an informant now maybe it's not the biggest a secret in the world but you could imagine a case where there's something much more serious about the informant and it's only found because of some random comment the witness makes on the witness stand in a manual check i mean before in washington just curious as as the office as  procedures change it all i mean is this this could mean look this could have been much much worse than it was frankly as are joakim that this was merely could be viewed as cumulative and this guy could have killed somebody  and that could have gotten maybe because someone didn't do the manual check on the computer so i'm kind of wondering what going forward how this doesn't happen again i will tell you not even a result of this case but prior to this our office and not in concert with best gate of agencies because they don't this is our improve our office prior to this has implemented and put into place a procedure for basically vetting all potential informants and that is done through one of the seniors supervisors see their senior attorneys in the office or one of the supervisors in the office sometimes supervisors or senior but somebody in authority to vet all potential informant so if an agency comes to us it doesn't matter if it potential drug use instances of miss honesty any time they previously testified any other time they provided information any time they've been informant any payments they've received i mean anything you could literally think of if you looked at all the various cases about things that have popped up that is in place just to try and avoid this type of situation this case certainly wasn't the impetus for that but the events that occurred here were in two thousand and ten this trial wasn't until two thousand and thirteen  i've got three minutes if you want me address this more i can i could go all day i'd like to briefly discuss the sense in issues if you have any questions about that the judge at trial made a pretty good record at sensing about two point hands meant for the firearm the three points and  n for the managerial role that's very clear air it was supported by the evidence i mean her findings are sound in that regard and as far as the acceptance of responsibility that defense tried to raise in their reply brief our position is th abandoned that because in their opening brief they list that is one of the three sentences in issues but they never ever discuss it to the extent if you want me address it they went to trial they deny guilt they tried to claim that it was the wrong person they weren't there that  they were involved and then after arrest he said i was even just a money courier quite frankly the court found that the evidence was much greater than that and so we checked that as well but for those reasons we believe that the judgment of conviction in the sense in this case should be affirmed thank you very bottle the main takeaway here is that we don't know we still don't know what else is out there that government didn't discharge its duty under brady they did not disclose exculpatory information it's that simple there could be to use the courts have said and there could be more out there there could be a murder there could be i don't know the point is a thorough check wasn't done and we were not provided full and complete disclosure as we're entitled to and i also think that the government sort of whistling past the graveyard with regard to the fact that just the heat they're talking about the facts of the case in this end of it has nothing to do with brady evidence could be overwhelming but the government still has a duty to disclose payments that informant was get was provided by the government who they're now calling and he this man was instrumental in putting the case together and it was his identification of the of the defendant it was his identification he was sent in under under cover sensually into the jail where my client was held and then came out and said yes that's the guy so this this this was a instrumental witness for the government he was it's not a cumulative  analysis i also think it's important when the judge what was about to declare a mistrial the government had no problem in producing the documents none whatsoever so it's not as though this was undiscoverable it was very easily discovered they just didn't do their job  and if there isn't a new process that the government counsel is just describing about vetting these witnesses properly mr look is really should be entitled to a trial where that procedure is follow the last thing just to just to touch briefly on the sentencing issues as far as the briefs are public record and so is what i'm saying now i don't want to betray any client confidences but the reason th plea agreement was simply not possible was there was fear of legitimate fear of violence and that's why the trial went for the way it did i can't say any more than that i will say that other witnesses were were killed other other people were killed in this case so that's why that's why he went to trial there is nothing in the guidelines or any opinion of this circuit that suggests that simply going to trial he did not take the stand simply going to trial and putting forth a defense is a bar to acceptance of responsibility he did except in the p s r which is was submitted to the court did specifically say he accepted guilt and he agreed with  the jury verdict for the purposes of sentencing it wasn't it was interesting i'm innocent i didn't do it was just that he went to trial and there's nothing in the guidelines that prevents that yet the briefing that you did on this was pretty slim and so you're asking us essentially now to go back in to consider all of this by way of the reply well no i explained why it says it was a scant as it was to the extent the district court in that's contained in the breeze to exempt a district court relied on him going to trial is the reason that it did not impose or allow the acceptance of responsibility enhancement that alone as air but she didn't do that she articulated specific reasons why she exceptions would not be appropriate and in this case but that analysis relied heavily upon the notion of having gone to trial and so the extent that that's an invalid argument that's an invalid reason justification for that denial  that is why it was raised the way it was i just for the reasons i said i can't really go any further it just had to do with fear of his life as to why he went to trial beyond that i will just re submitted for decision