more that mr rodriguez continued to call his appearance and there was your position that the district court judge made a legal error by thinking that more with me that then on willingness i think that is part of our position that the district court thought that the reason for was necessarily has to be on the public record and that's what sort of seems like there's too if you're like me i hear you saying that the problem is the ex parte insist that the insistence against six party proceedings another thing could just be thinking that the reason for troubles me is that your client didn't summarize the anticipated testimony so how was that just tricked judge post to be able to determine whether the testimony would have been relevant in any way i think that motion mr rodriguez dropped a footnote indicating that the witnesses he was attempting to impose are the same witnesses that he was attempting simply to the two motions essentially cross reference to what what about the local rule forty seven point one gene one that think anything has actually changed but i think that her trial counsel at the time was extremely sensitive to those concerns and was in direct contact with the witnesses and i don't there's nothing in the record that just the witnesses wanted that information to be ex parte but it seems everything so one way that i think that i've struggled with to try to understand what the district court did here but one reading might be that this trick or thought he couldn't really tell if the witnesses really were going to insist on and being unavailable unless there was some kind of negotiation with the government and keeping the information ex parte prevented that kind of negotiation and i'm wondering if the fact that later they seem to think it's ok to reveal the information that sort of trial and that's separate and apart from the actual admission of the definitions into evidence at trial or a much more conclusive and chilling of an ability on bill ability with your fire and the reason for that is because he has up until the time of trial to engage in those negotiation much that the thing that i am struggling with is whether what the judge was doing is sort of saying before i rule on this i'm going to require the parties to try to settle this on their own that seems like a kind of thing to say court judges do a lot and maybe it's within discretion and maybe that's what this judge was doing but it's also possible the judge thought you needed a higher standard of on a bill ability it's also possible you thought that unwillingness is not enough i mean there are a lot of other things you might have thought it's really hard to we would have been able to take these people weren't really unavailable they could have come here but that would be the same charade right i mean if they can come then that's because you're not going to really report it and now you're saying you would have to report it so i don't  what we're really doing with here is a record that has people going every which direction changing stories right here and there and then really end up with a high level diplomatic concern well and we don't does the government agree with opposing counsel that the required proffer was indeed made as part of the rule fifteen seventeen submission that was incorporated by reference with their separate to referencing the other document in that paragraph that's about both correct but there was nothing that specifically perforated it moron and to the district court can't be charged with in puting what was in the rule seventeen requests for two reasons one is it attorneys were certainly on notice that the district court was not going to be considering its missions and in this context it makes sense because not only do we know from later materials c s r that the witnesses may not have been what was provided in the public record your client put nothing on the public record relating to materiality so therefore the district court by definition couldn't have abused its discretion by finding that problem not satisfied don't know but i'm with you on rule seventeen but i think the government's right that when you're talking about fifteen and going to a foreign country to conduct a deposition doesn't the calculus change at that point i look at the rule seventeen progress to me make sure i understand your position your position is that that and i don't know if you have cases that say this but in the world fifteen context in a criminal case the defendant never has to disclose anything that relates to materiality because it will under that why while there's nothing that's what i'm saying i look at the information that's in the world seventeen application but that's the only thing you've pointed us to right that's the only thing that the district was ever advised of and i just don't see and if you're saying this case is special and that information was so critical that it be with help from the government i'd like to hear why but otherwise what i'm hearing you say is that the criminal justice act allows us to not to have to disclose they anticipated testimony to the government