panel is whether there's a substantial question of law that may result in the reversal over of a cator of the of the conviction i'd like to begin if i may with the brady issue and in particular the two questions that this court left open in the rodriguez case which are particularly apt here and present that substantial question of law that may result in the merits panel giving a remedy to mr walsh one is whether the forty to fifty nine interviews of the key witness in this case should have either been recorded or somehow memorialize in order to this quote said as this court said to ensure that any brady material can be adequately relayed to the defense was what was the discretion that edward walsh had to do part of his job outside of the jails the government concedes that he spent several hours every day at the jails but there is a dispute as to whether he could have done a lot of his work outside the jails and there certainly abundant evidence to that effect there were thousands of phone calls there was evidence that his undersheriff under served to sheriff demarco had said he was always available he did his job there were plenty of witnesses testified that  walsh did all sorts of official activities including going to wakes graduations trainings outside of the office but there was one witness in the key witness in this case was sheriff demarco who said no i never gave him that authority and that was the key issue in this case and what is a standing is that sheriff demarco was interviewed forty to fifty times without a single note being taken and in several ways that goes far beyond what happened in rodriguez we're judge labout made those two observations about the day may come and we have to do something different today is that day well what you would be asking for in the first instance i suppose is a hearing to determine the facts right i can what we've got here is some want unclear record as to things like what constituted interviews how many times was he talked to with what content about  want and was it the case that anyone instructed the agent not to take notes in those interviews i do think that a merits panel may find that hearing would be the most appropriate remedy here i don't know that that's the only remedy but taking your question that is a fair point and here there are there was a dispute that the government raised about the number of interviews but i think we had better as you see in our reply brief not only the context of the questions leading up to  why we spoke forty or fifty times but then later the specific question that's as in your forty plus interviews so the record it fully establishes that were released right but that's still a question of characterization there is an interview if you go in if you call up on the phone and say well what about this little fact and he said there are enough and i think i was just trying to make the point to understand that it's at least a factual question that we have more than come forward with with evidence that there were potentially interviews i also point out that agent jose when discussing  interviews or discussions with other witnesses didn't make clear one point he said oh let me clarify that was just sort of a hallway discussion so when he says interviews i think the implication and i think it's a strong implication he never denied it was to say these were  interviews and taking that at face value or least that we've established that there's a factual premise for our argument that's an incredible number of interviews i think anybody would be surprised unless you'd be water boarded forty fifty interviews is it something that's unnecessary for a non cooperate or somebody who is a sheriff of a populist pop populous county who presumably has other things to  do and then we learn other things along the way we learn one that an important piece of what i would call brady material didn't get disclose which is that demarco spoke to his undersheriff who in effect said look in those three years before he was always available we had him we reached him by phone he was always doing his job not a single problem that we can dispute you know what the significance is of that i suppose but that is pretty strong evidence that should have been disclosed that was never disclosed i see that my time is almost up but just to make the point you know no please i just wanted to you know the real question i think is here is  how do you distinguish rodriguez were how do you fit into the facts that rodriguez left open and we make those points i think quite strong in our brief that there's a number of distinctions and look the proof is in the putting when you're interviewing someone forty fifty times what happened the first time what happened the he telling the same story it's inconceivable that he's telling that same story over and over and over again because even if he were you would not need to interview him and if he wasn't which is certainly the strong inference that should have been disclosed he was the main witness in the case judge that said he was the only witness who testified that walsh had to be at the office there was plenty of evidence that would support our theory to the contrary but having that witness the sheriff of the county make that statement in an effectively unimpeachable way was devastating to the defense thank you thank you morning your honor may please the court i'm just going to address the the issue of the the alleged brady and i think at the outset i just want to set what actually happened with regard to these forty or fifty interviews subsequent to the trial there there was during the trial there was cross examination and he said he spoke to the sheriff forty or fifty times and then during cross examination he adopted a question where it says during these forty or fifty in interviews you ask x in he said no but there was a post trial phatic zero hearing in which it specifically indicated on the record that he spoke to him forty or fifty times so there was no interviews and  tell you why this case where no interview well he he he did speak with him but it's sort of a different case because what happened here is ed walsh was the leader of the conservative party he will both actually and perceptively a lot of power within that that agency when it came to his when it came to the sheriff's attention that he might not have been showing up for work the the sheriff undertook to take steps to investigate walsh he tried to get a subpoena from the u s the district attorney this return if refused he tried to get a subpoena from the county attorney the county attorney refused and then he went to the u s attorney's office and through the f b i and then the case referred to the f b i and then the investigation began from there and agent so's he testified that his part is his general policy was that normally when you're dealing with other in other agencies and other investigators he doesn't take he doesn't take notes of conversations he has with regard to logistics and other the other things and and i it should be noted that we did provide thirty five hundred material from chair of de marco with regard to the steps that he took when he was investigating the case in other words when he went to the district attorney's office and was turned down sense of a traditional witness interview what happened was demarco investigated it couldn't get any traction with the local authorities then went to the federal authorities and basically said this is what i have and he gave him his notes which were turned over thirty five hundred and they discussed the case but at least eighteen hosey viewed it as you know two investigative agencies speaking with one another and he and the policy and i think it's quite common that when that happens investigative agencies don't write thirty five hundred you're saying this is more like what happens when an f b i agent is working on a joint investigation with the police and the police come up with some facts and rela leader even as if he were talking to other f b i agents working on the case record one of them develop some information and relays it to the lead agent is that that's kind of the model yes it's not showing up on the three otoh yes there any other questions that's the linchpin as i understand ok and just with you know and just with regard to the no one there were no witnesses that said that he was permitted to work outside the jail in fact both the prosecution witnesses as well as the fence witnesses were asked and they said we have no of no reason to  for for this defendant to have worked outside the jail he works inside a jail he's the pursuant to the collective bargaining agreement he is he's required to be there he's required to work the regular and overtime hours  he that he puts on his time sheets is getting paid for and there was literally a mountain of evidence including both billing and cell site records casino records conservative party records that this defendant while he was claimed to have been sheriff commenced this investigation and referred it to the f b i absolutely in the his testimony begins sort of chronologically and it starts with the media so what happens is there is a shareholder meeting  and walsh attends that shareholder meeting and then the local publication newsday says makes a freedom of information act and says i want we want to see as time sheets so they get as time sheets  that the market realizes they have a problem he shows it to walsh walsh says it's fine and then the investigation begins and what he wants to do now is he learns that he he's golfing and then he tries to get subpoenas from the  you thank you both helpful helpful arguments will preserve short i don't need to belabor this but i don't think the record shows that substantive material was turned over in the sense of police or other agencies taking notes that be true were made but the fact is that there were no substantive statements of de marco that were able to be used to impeach him on the fact that if the idea is that de marco allowed all of this the fact that he begins the investigation because he thinks there's something wrong and as you put it shops it through a series of investigate investigative agencies that don't take him up on it tends to undercut the theory that the sheriff and all along said it was ok and then other people somehow ginned up in this investigation they use that to their advantage but it was a hurry to fickell to undermine that without knowing specifically why they had met so many times and what was changing during those the course of those interviews  reserve decision but we'll get you one very shortly