citizen is his wife a federal grand jury in jackson mississippi was in pain all to thoroughly investigate allegations of food at the boltons after thoroughly investigating the matter including calling numerous witnesses coming before them but shit and showing the district court found the g a o food theft was relevant conduct is that right yes that was found to be relevant conduct which these agents in this matter were evasion and related to cashing checks for a friend of theirs which is now being contested word the it's an attorney friend of his that's now come in and said that he's blaming off an account of his also now been charged a different federal invasion boltons and they didn't know it and then there's a separate parts of it is where linda bolts and on her accounting she's not a very educated person she would write loan next different different transactions and the accounts never came into question well what do you mean by loan and what she meant is that i've already been taxed for this is not for sales tax and so but had nothing to do with that at all but how can it be problematic for a federal agent to talk about something that a federal judge what they told the public is that they were found of stealing seven hundred thousand dollars worth of food and that was absolutely not a finding of the court there is no numbers of that so it doesn't even make any sense so they went broke on something that they were not able to return a diamond on and from what i believe in my opinion but what we're asking the court for discovery when i get a call even if even if they did say some things that one supportable the real question is whether it was outside the scope of their employment isn't talking to the press is something that the head of the regional it's a sting of public opinion that can ever be washed away this is something that was totally rogue and what's your best case i mean just because even assuming they violated policy what your best case for saying a federal agent or a federal prosecutor talking about a case to the media is outside about it of the government and these agents come out and try to explain these interviews away by saying that we're explaining the convictions but if you look at the actual interview they're just talking about this charge of public corruption which is something that the u s attorney who really rubber as much as stole the biscuits they haven't done that these are going to people hiding behind some sheet they're c i c one no one's ever been able to confront these witnesses and this is what the u s attorney's office is press release after the sentencing said and the district court found they still foods of the sentence was increased based on that would would you be able to sue the person who drafted the press release typically after sentencing in a big case the u s attorney's office sends out a press release i mean part of the reason we have criminal law enforcement is deterrence so that's why the d o j wants to publicize these things so let's say about one probably did issue a press release issue after your client sentencing that in the press release it said m b and the court found that they stole food and that infin fluids their sentence would you be able to sue the person who drafted the press release not if they actually  them of what the court actually found and where the court explained that they found a culture of corruption it was not enjoying that they actually stole food it was came out as relevant conduct because of some allegations in a p s r which i still argue was influenced by self motives there were that the guy asian those are moves off the case because charles bolton was a part of having an illegal alien that was being harbored being picked up there's a you know different motives that are here in the personal gain that they got by going to say we've identify anybody that made these statements only because yes yes your honor and that we weren't privy to any of the three of the report that actually claims where these people came from which it doesn't make sense or doesn't seem logical that if you have this kind of information i mean we know that there's you know the power of a grand jury to indict and they didn't have enough to even indict them but then they're going to use relevant conduct i mean that they were not able to challenge that the one hundred and forty five thousand pounds if you're required to  whether or not the judicial determinations from a judge about relevant conduct provide a basis for these agents to go and then may on certain claims about one charge conduct and they do not and the reason is that there are agree that the say assume we agree they do not mean it because i think in we should have been avoiding the main issue which is not whether they had a basis to make these comments but whether the comments were in the course of their employment and even if they were completely false isn't the test just whether this is something that is part of their job duties with within their normal duties even if they engage in wrongdoing yes that is the test however even if media contact or media evasion or theft or whatever the alleged tax crimes where the interview was soley focused on food death that's all it was and they did use at the very end broad statement that the f b i and i are asked are here and we will find you if there is corruption with a judge in the sense in hearing said that there was some form of culture of corruption but never delved into any detail of what that was and so if the primary motivation is to go in and specifically talk d about the un charge con we know which is why we provided supplemental briefings to the court which we believe was improperly and then i do not consider that public policy dictates that the court in an overwhelming amount of legislative action that is the hearings that were held spoke directly to whether or not f b i or the department of justice may go in and discuss on one charge condit that to me is what the umbrella that's where they cannot pierce that is if they are solely convenient media some type of press release or interview they cannot discuss and charge condit it would stop before then because that is the policy of the department of justice and the f b i which we know based on testimony that i rampant that the f b i agents on all levels doesn't matter supervisor of the mississippi are not violated this policy and so yes they act outside their course and scope when they elect to give a media interview for the sole purpose of discussing  charged conduct but that that has constitutional implications to write did they discuss all of them and the african john or they discuss the food that d they did mention the senate saying and then as i stated before the last paragraph of the end of the interview that we provided in our briefing states that the f b i director ever present and we will catch you if you basically it's a p s a announcement the end but i thought i saw no mention whatsoever of the actual bases for the conviction of tax related that there was no food death because just because that judicial determination is made based on a different standard we believe that it was a violation of the and ninety five the st major confrontation clause me case that was presented and it's through both legislative acts it's also through our constitution and our laws that evidence the importance of public policy when dealing with these type of accusations and so even if this court determines that on the face of the pleadings that the appellants have not completely proven that they are outside the course  scope it's our default position or not in the alternative that the district court should have granted discovery and that is because that stokes case that co counsel mentioned earlier specifically provided that you just have to have an  a legitimate basis on the face of the pleadings from late to be able to get additional discovery on the issue and so to find out the personal or political narratives of biases that were evident with these agents in office because they could not get indictment on this food that if we must be able to have are entitled to a written and also deposition discovery it's important because that's how we uncover on the face further delving into the issue you what those personal and political biases and interests w and we already know that the only u s attorney who cannot get the indictments or get the charges or get the convictions also signed the certification which we're allowed to rebut with discover a lot of us and on the face of those we believe that we have a less enough to at least allow the pilots to obtain discovery on the issue because the government and specifically government employee use to act outside their scope should not enjoy some form of  but it's it is the plaintiff's decision to pick her venue or his or her venue and the actions she or he decides to pursue and this is one of the election of the remedies that we sought to pursue a one of the available remedies to the plaintiffs but the plaintiffs chose and elected to file suit against these individuals because of their personal gain an interest in this case to try and put forth and convict them in in the  public opinion and unfortunately that shouldn't be allowed in our country nor based on the six the men that and the particular facts of this case again want to either this court  agents in this case and so we don't know how that figure was calculated because at the time of the sentencing hearing all you had was a p s r and c one and c two confidential informant c i want to see eye to that we are not allowed were several trials that had occurred there were trials of jail employees and so it's something that you see in the sentencing transcript it's again the district judge discussing those findings as mr harrell said i believe in mr woodland about this court and bolton's challenge in this court the bases we've heard the your opponents that there was no evidence that was introduced with respect to the just charges that the government made and a p s r and some senior that current that they're perfectly able to they were perfectly able to make those challenges in their sentencing appeal that the district judges findings were without any type of basis of course they did and i  they said truth is what they said a true when i ask you a question i said they said that the government did not put on any evidence other than the p s r with respect to the food thank you i think i did not name individuals within the government was relying upon them for that charge and consequently they had no opportunity to cross examine or understand the charges will be in my guess is that true or not whether or not the what your concern is though that is separate from the question of whether or not the f b i agents that hires agents in this case were acting within the scope of their employment or whether that's not true either  acted and talked about charges that upon which they were not convicted and that the policy of the f b i and the justice department is that they should not talk about uncharged uncharged crimes and that that's what primarily their argument was their argument is they had an aggressive united states attorney who is making public statements about public corruption he comes down to the forest county jail and he's trying to prove this public have to accept it unless you can tell us otherwise and so you know right so st you know there is a couple of responses so the st is that the they haven't pointed to any policy about talking about judicial findings that were made in open court and there is no i don't believe that they did i think this is pages twenty two to twenty three the record where it's the article that shows what they had is they they did say that they in fact did steal food i don't think they said that was the convention and in fact the  paragraph in that article talks about how this was about the sentence the sentencing of the bones and so having made their state runs the statement of the f b i about the other people that had been convicted in th that that shows up in the article but if if i can point you to the article that does show up on page twenty two and twenty three they did make several other statements that i think by my count on their side doesn't completely accurately point out which is they talk about how they went about investigating the boltons they talked about how much hard work that was they talked about what the f b i and the i r s is missions where they talk about how it took weeks and months of combing through paper records to uncover the type of conduct that food is that right it was the subject of a public sentencing hearing in which a judge made that finding and if and in that circumstance of course that all officials are able to discuss what judges find if the judge had written this down in a memorandum opinion there's no question that that federal officials could have copy and pasted that memorandum opinion or sent that memorandum opinion to the media and so what we have here is far out there but the nd point and kind of going to judge costas question on this is it doesn't matter for the purpose of the scope of employment by their somebody who violated a policy and no employer has a policy for employees to go out there and to commit torts or to go to fame or other people which is the allegation that has happened here and that's made very clear by the mississippi supreme court if you look at commercial bank could see her and this mississippi supreme court there sized that the question is not whether you did not follow the instructions of the employer the question is whether you actually acted to serve your employer your employer's purposes or whether you were employment inquiry the scope of the employment inquiry isn't whether you're doing silly reasons i'm not hearing you say they won't wanted to make these kind of which is part of their duty and i'm saying they were not appointed to make those kind of statements if these appointed to do even if in a particular case you might disagree with how they carried out that particular type of work or you thought that one type of work was authorised and the other was not the question isn't a very specific level whether this particular interview was correct or incorrect whether there are factual misstatements or not the question is whether giving interviews in this report explained this pretty clearly we think that the question is whethe giving interviews is a duty that is at the agents have and there's no question that they are that the iris agents have and there's no question that they gave interviews in which they actually carried out their duties they talked about th missions they talk about how they investigated this particular case they talked about their continued presence in the state of mississippi and all of that just goes to show that even if they can you know said things that the pla here say are allegedly untrue that doesn't change the fundamental nature of what they were doing which was discussing a closed criminal case in which there had been open sentencing hearings about in which they were talking about can rely on p s r as presumptuously correct that is to say that is then up to the defendant to present evidence to disprove what might have been in the p you for a while i didn't i don't believe you i think you actually did engage in this type of jail food that they didn't put out any other evidence and in fact that is purely totally consistent with how this case has been handled as a criminal matter and not as in the civil time times also consistent with his judgments that every criminal sentencing we get convicted a trial of one drug deal and then at sentencing the judge has on going to tell you to the last three years of all these trucks of drugs coming across the border and if the judge finds that that's going to influence the sentencing there's usually no live witnesses or anything like that and that's exactly what this court essentially said in affirming which is even if this wasn't relevant conduct in which you needed some more evidence of you could still is entirely usual in the fact that the sentencing judge after a one hundred and fourteen dollars page transcript thoroughly considered all the issues that made those findings and that to f b i and ira's agents denver p did those findings  that doesn't take them outside the scope of their employment just to really briefly address the question of discovery in this case this is a case that is about to federal officials  and munity from suit and so in those cases the supreme court as well as other courts of appeals have made fairly clear that there's that even limited discovery unless you put forward something pretty specific to what the government certification is and that's to protect their immunity you don't have you know just untethered discovery into what to happened to have been thinking on a particular day you have actually have to lead something quite specific and they haven't alleged any particular purpose that these two individuals could plausibly even been accomplishing other than to accomplish the missions that they were appointed to do which was to be a scenario where they would be i mean you know if you get into like a neighborly fight over a stands and you go to your local newspaper and say some bad things about your neighbor the light of even if you're an f b i special agent charge in mississippi and that happens to be in consider the nature of the work that they're appointed to do and you consider the purpose and so if there were purely personal purposes this wasn't really a matter of the f b i or the i r s it's missions in those circumstances perhaps you would hold somebody outside the scope of course that's not what we have in this case which is to agents after sentencing hearing discussing those findings with the local court doesn't have any other opposing counsel i actually made my point even more clear in the bottle and that is for discovery purposes quoted fact down inquiries mandate discovery i can think of no better scenario in which a large portion of this panel stime has been devoted to discuss the facts of the case in particular the facts of whether or not the f b i and iris agents of what exactly motivated both politically and personally these comments but the district of columbia again in that in the stove's case i have to disagree with opposing counsel because f b i christopher frey in the case alluded to these policies and procedures were violated i can tell you as an officer of the court ma personal research and issue that those internal policies and memorandums are not available to the public in fact one of the one of the key issues from the testimony is that and possibly obtaining discovery is whether or not the f b i or i r s agents would have to provide some sort memorandum requesting that even that interview was authorized in the st place those are relevant discoverable issues that we're entitled to and discovery and and that is one of the those things that written discovery would certainly provide us because they would have should have to respond and state whether or not those written policies exist in cooperation with their own inspector general and f b i director at the time in responding to senators and that's why the evidence in those hearings are so important because they are so overwhelmingly in favor of the of the pellets argument in this case that those policies and procedures exist which means that those policies d and procedures exist then the charge conduct interviews provided by these agents was in violation of those policies and procedures and the interview should have never happened to begin with if they were going to discuss for the majority of the of the article which i have in front of me and included in our pleadings says on your side report public corruption the piled up that is the title of the article nothing mentioning tax for all but the public corruption aspect of this case was all about the food that didn't and for my last even minute offenses and only mentioned in reference to anything regarding d his senate seat while he was in it convicted him in prison you're going way outside of the record we don't need you to do that just fine yourself to the record in the case  d just my last point is because we're talking about the type of work that opposing counsel mentioned that the this is not some per se rule that falls within the scope of our definition of the type of w