also the motion to clarify the reasons for that denial mr pena as motion to disclose was based on the refusals over the course of at least four years of the u s attorney's office for the western district of texas from aspects of the case against about are interested in as always jurisdiction and i have not seen the motion that opinion filed on his original appeal which our court court to stay the proceedings in the original peel in order for this appeal to proceed and of course our court in its opinion ruled that the appellate waiver appeal  loaded his first appeal and then at the very end said and we deny the motion the stay so that the second appeal can go forward is that some sort of precludes scibor doesn't that the fact that our court would not stay its appeal in the way indicate a lack of jurisdiction for this second appeal i don't believe so the court denied the stay presumably because it did not think that the appeal should be supplemented if indeed the disclosure of this information resulted i'm sorry that was my question what was what was stated in that first and that motion asking the appeal in the first appeal be stayed that the underlying motion for it to compel this information could result in information that would question whether or not the appeal waiver is applied to mr penus case if for example there was a misconduct of a constitutional nature then mr pena could have supplemented filed a motion for leave to supplement that initial appellate brief also asserting that the for that reason mr pena asserted other reasons and his direct appeal as to why the appeal waiver did not foreclose that argument but obviously the court denied that what i'm interested in is the what was stated in the motion to stay that appeal what was that we're trying to get some more information that possibly would supplement the record any of the bases for staying the appeal i believe that was the only basis for staying at heel and i can double check and insult and of course your notice of appeal both challenge to the judgment and the restitution order but then in your first appeal you just simply elected to challenge the restitution order but your knowledge of appeal did cover the judgment it's a judgment of conviction ye and as i understand it the docket only shows no motion denied and then motion reconsidered and i but there's no actual paper document for the text order correct is this some new procedure being used in this particular district aware of other judges in the district using text orders for substantive motions such as this one certain for motions to continue and such text orders are common but not on the motion to compel disclosure information was eventually printed out and put in that record charmer another if the only thing is a text order there is no other document to be printed out and included in the record the only order is the language that compel pic has it was not an aspect of the case that was on appeal through his notice of appeal of the judgment in the order of restitution were the ones you were challenging the judgment on your appeal correct challenging the judgment and in the motion to compel disclosure the legal issue was whether or not the u s attorney's office had to disclose that information which potentially is related to the judgment but it is not that the same discrete issue that was on appeal through the notice you walk into you some other proceeding to challenge to get the supposed documents you want and then to challenge your judgment such as the twenty to fifty five or something else why can't you follow that route so that route potentially is available to mr pena now if he chooses to do that on his own at the time that the motion was filed to the appeal was pending and that was the avenue of relief mr pena was pursuing he wouldn't have filed a petition for under twenty two fifty five at that time stamp but our court would not stay the appeal our court when i hear the appeal the judgment appealed restitution order so my question is while we're here because of the judicial efficiency of the issue is already teed up for this court's consideration whether or not mr pena files a twenty two fifty five motion at this point is unknown if he were to then he could pursue discovery under that mechanism but the court's inherent authority to rule on a matter such as this to investigate the pos the apparent conflict of the u s attorney's office is not somehow barred by the availability at a later date of the heaviest petition and discovery under that mechanism understand it the reason given because you file the motion to compel prior to taking the appeal in the district court denied it and at the time i think one of the reasons given was that the particular warrior in that district u s attorney's office might have to be a witness because of comments made by penus lawyer to him that was the first motion to compel filed back in two thousand and thirteen addressing the pre indictment i meant also support the recusal post indictment course mr pena pleaded guilty after your first motion to compel did he did it so he knew about a possible problem but he went ahead and pleaded guilty and once again recusals that occurred after he entered his plea of guilty and that so the factual basis of that second motion to compel disclosure is not addressed by that first motion to compel disclosure and so the only reason why that issue was teed up again was because the just department of justice took the extreme measure of her accusing the entire office of its u s attorneys from mr pena as a case again after  they had already instituted the prosecution against him and after he had pleaded guilty correct he pled guilty person to a sentence right i'm sorry for he was after he pleaded guilty but before he was sentenced correct he pled guilty to eleven and so that is why we're in this procedural difficulty here of learning about an apparent conflict of interest from the other of the u s attorney's office after filing the initial break from the direct appeal and  concerned that this indicates that there was some sort of fundamental flaw in the throat prosecution against but tell me again why the proper course of them is and who wants we if we find no jurisdiction about the wording in the statute twenty eight u s c twenty to fifty five it seems to me to cover exactly what this would be a basis for the motion correct you know we found out something went on and this needs to be investigated you don't represent mr prayer for that purpose or do you correct i do not represent nor do i thought leave that he would have the right to counsel to paid for by the government for that hippias petition  but that is an avenue he could pursue now in the interest of judicial efficiency though the matter is already before the court and if mr penn your work to pursue hippias proceeding he would then need to ask for the disclosure you have or  district court then would be faced with a similar question to what it was faced with below which is whether to disclose this information under the standards provided for in and of habeas proceeding which mr pena believes that he could reach but given the district court's denial below which we don't know whether it was because it thought it didn't have jurisdiction or because it was denying the issue on its merits we could be in the same situation a year or two from now if that district court denies his request for our appellate jurisdiction of some collateral order exception imo you claim of the fine water but the bombing order was the judgment which you challenge on appeal and now you come up with yet another warder point to be a what do you have some collateral order doctrine you can urge i do not but i believe that the collateral matters that arise in the context of a trial before there is a final judgment are not heard by this court because there is no final judgment yet here when the strange position of already having a final judgment and then having an issue arise that we believe the district court had jurisdiction to consider and it denied that request and so so that is an order that was final and that would be for this court's consideration mr pena also believes that if the court had considered it on the merits and that was the purpose of it denial that it abused its discretion in doing so because investigating this appearance of conflict with the u s attorney's office would certainly be an appropriate use of its inherent authority to her death or it is often used for attorneys fees vacating judgments in ordering disclosure such as during a trial a legal authority supporting your allegation here authority by the district court to find out the requested information you're seeking well so in noble's the supreme court ordered that a disclosure during trial was under the was proper under the court's in her an authority because rule sixteen did not apply yet it was in the interests of justice that in that case that the prosecutor receives the defendant's investigator's notes for cross examination purposes of course that was in the context of the trial but the idea is is similar additionally mr pena's motion was not speculative because he asked for very discrete things he asked for the factual basis that were in memos that according to the u s attorney's manual would have been submitted to the general counsel's office to secure these recusals and the one  and wants to compel further to school because he did not learn about the recusals until afterwards and it would seem strange to benefit the government for hiding this information from mr pena during the course of the case and then penalize most of them have a duty to tell m recusal was already rescinded by the department of justice by the time that the indictment was filed against mr pena it was rescinded yes the printout recusal was rescinded before the and indictment came down suggesting that that conflict had been resolved and was no longer an issue and that a separate conflict existed afterwards thank banner from the western district of texas on behalf of the united states i think it would be helpful in this case to perhaps go through a timeline of the events as they occurred because there's only one time in this case where the government the western district of texas reassigned prosecutors in the prosecution in the criminal proceeding of the defendant i think that it's been convoluted as to other recusals and other cases so if th of prosecutors there is a little bit in the record of those cases but i would like to point you to the particular places where that arises at the if if the court would give me permission so obviously you from i'm from the western district of texas that was the office that was was initially the case was reassigned to the northern district of texas but then that reassignment it came back to san antonio and so what happened is at in two thousand and nine to two thousand and ten the offense was committed and then in july first of two thousand and ten and that's when a u s a bill lewis he's a prosecutor who at that time was in el paso and he has a conversation with william stanton who is the defense counsel in this case and he says that money that was just transferred your account he had a personal relationship with that he did have a personal he knew of mr stanton and he said this money is criminal procedure proceeds i just want to warn you don't don't spend it and that conversation not one conversation and a follow up letter is what led to the conflict in this case and the conflict of course is mr usa lewis is now a witness if this case goes to trial against intend to that is the conflict this is not a situation where there's some sort of relationship or personal interest it's the conflict of you can't be a prosecutor and testify in the same case so that's the conflict well then the department of justice made a decision within its discretion at that point in july twenty fourth of two thousand and twelve they reassigned the proceedings because at that time they were investigating stanton to the northern district of texas but then the northern district of texas opted not to charge mr stanton and then the case was transferred back to san antonio because the conflict was no longer a conflict there was and he was no longer in necessary witnessed the crime itself mr lewis his conversation with mr mr stanton didn't have any probative value to the charges against the defendant it's not any relevant to any element of any charge that occurred after the crime had already been completed rumored that determination that sort of crime and justice itself  in december of two thousand and thirteen to that request for disclosure we attached both d the recusal order from the department of justice from the general counsel's office and we attached the rescission and then us and we must provide the the council about about this before which is what prompted the motion in the first place so as you say lewis informed both parties that there was this reassignment and then non reassignment which they i'm not sure they by the defendant he asked the court not to rule on it because he wanted the very favorable plea agreement that the government was offering which did not hold him accountable for the charges involving the william stanton deposit so he was basically sentenced to time served when he faced a much larger sentencing range as a result of this plea agreement so he of he jumped on it he waived all pending motions so and on eight nineteen after this followed that disclosure hearing also in march of eighteenth of two thousand fourteen that was the hearing where the defendant stood up his counsel stood up inside i know i have this motion pending but i'm in negotiations with the government and i do not want you to rule on this motion and the court said ok i'll hold it you let me know if you want me to engage with it at this point and then in august which is a month later he pleads guilty and in that plea agreement he waived the right to any additional disclosure fully aware of the conflict fully aware of it pleads guilty and waves his right to any additional disclosure here in court he is in the plea agreement plea agreement it says in the plea agreement it says any additional disclosure he also weighed at that time according to the circuits precedent he waived all pending motions which includes that motion to compel disclosure by virtue of that guilty plea and then and two months later this is when and the department of justice reassigns melissa pena's prosecution this is not a court order recusal this is the western district of texas in the exercise of its prosecutorial discretion deciding to reassign a co defendant's case with a different procedural posture to other prosecutors and then in the fall in following january two thousand and five she enters into a plea pretrial diversion agreement with the northern district being the prosecutors in the t best when we're not on oh that was and done on and according to the response that the government filed that was done on november first of two thousand and twelve so that was pretty indictment it was almost and it was well it certainly wasn't required the recusal in the first place under the ethical rules and under the law i thought this procedural posture there wasn't any sort of necessary recusal and if someone had petitioned the court to recuse them they wouldn't have met the standard it was merely the department of justice's prosecutorial decision making authority you know what we're going to be conservative in this case we're going to assign different prosecutors to this case to handle this because of the potential that one of our attorneys in this office could be called to testify it was very conservative it was not required it was just a prosecutorial decision that that was in the interest of justice  or it is permitted by the department of justice regulations the rescission recusal order but it's not something that was court mandated it's not something that the law determines it was all its own internal is sentenced then in january of two thousand and sixteen there was a restitution order from this restitution order a notice of appeal was filed which i mentioned both the criminal judgment itself and the order of restitution and conferring jurisdiction to the appellate court on those issues in july of that year two thousand and sixteen the defendant files his opening brief a few days later after he files open in brief this is not in the defendant's criminal proceeding this is and the financial litigation unit who is now proceeding under the eighteen us c thirty six twelve recovery of the restitution order so this is a separate recovery of the restitution proceeding they reassigned prosecution in that case to the northern district of texas so that is not in the defendant's criminal proceeding this is in the restitution order regarding the collection of the restitution proceedings now to reveal the factual basis for this change of prosecutors would reveal the government's enforcement strategy but what i can say is that it does relate to stanton's conversations with people in the office and also that and under the restitution thirty six twelve and the case law supporting not not only can we go get the restitution from the defendant but we can also go after any property that was stashed with nominees like when the lawyer paid him self perhaps hypothetically recovered and i mean i at this point it's sort of in the process of that and also that is sort of what the government believes is sort of privilege so after in that separate legal proceeding and was assigned to the northern district of texas the briefing schedule is completed in the fall of two thousand and sixteen and by september sixth two thousand and sixteen the defendant files the reply brief and then in october seventh of two thousand and sixteen despite pleading guilty and waiving all disclosure files a second motion for disclosure with the district court of course in march of twenty seventeen the case is dismissed when he also f appealed he filed a motion to stay i believe that's accurate but i would have to review the record for that so that in march eighteenth of two thousand and seventeen and this court dismissed his appeal and on may twelfth of two thousand and seventeen vacate the mandate was issued in august tenth of two thousand and seventeen the time for filing cert had expired so at this point this case is over it's over this case is moot there's no longer occur criminal proceeding for this discovery motion position and any argument that this case is alive even is assuming that the defendant is titled entitled to this discovery which he is not under the chevrons standard he has to show a substantial possibility that the court could still remedy his situation in this case there's he's never articulate it and he thought authority that would entitle him to internal department of justice memorandum discussing this and in fact the case law is to the contrary that armstrong says that you must show clear evidence to the contrary and unless you show clear evidence the contrary courts will presume that the government has properly discharge their duties there is no clear evidence that the government has somehow violated its duties in this case if anything they were overly conservative in the ways that they have handled the reassignment of prosecutors in this only while we do not have a poet this court locks appellate jurisdiction because the case is moot this case there's no longer a live controversy that the discovery with the mandate has already issued are you conceding they're appealing from a final order or reason stated in our letter brief we don't believe the district court had jurisdiction and so we clearly you wouldn't have jurisdiction i want to know under twelve ninety one what basis can they even appeal that judgment that order to us whether it's right or wrong what's the basis like in a separate order them online your motion i'm not aware of any authority that would permit it  just to address the briefly  de governments inherit the court's inherent power to do that and the government believes that that is not does the district do not have an inherent authority to grant post conviction relief for this type of material and the courts the supreme court in osborne has said that there's no due process right to post conviction discovery and this court is clear that there's not open file and discovery so not only with the procedural posture of the case being post conviction while the judgment is being convicted but also the types of documents there that are being requested on both on both cases there's clear precedent contrary to this request and there isn't any precedent that has allowed this sort of documentation it's the government's belief that if the court had granted this disclosure order the government would be able to appeal this as an abuse of the court's discretion and i would just like to end by no the and the conduct of this case did not at all affect the defendant's rights there's no evidence in this case that the assignment of a usa lewis to the defendant's case affected any sort of right of the defendant especially there was no perceiving that a usa lewis testified at and there was no he was never an actual or potential witness against the defendant the only relevant conflict is that one conversation and follow codefendant case during the same time that his sentencing was pending before the district court and that codefendant was of course his wife they share intimately in their things and they're also business penya but not as to mr pena because she was indicted at the same time as mr pena in the same four counts two of those counts related to the theft of public funds which is the exact same issue the money at issue in those that conversation between a usa lewis and stanton so i believe it would be incorrect to say that there was not an element of the crime that turned on that that conversation made it to go into film or program contents of that are not available to mr pena so i'm unaware of what you know if she did briefed if there was some other sort of untoward conduct that led to that resolution i do not know all i know is that i still cannot fathom the logical explanation for even in the heart of the abundance of caution recusing from mrs penus case in pursuing against mr pena particularly when the plea agreement explicitly left the idea of restitution of how much restitution if any open and it was subject to a contested hearing restitution hearing in december of two thousand and sixteen you agree that  also like to point out that mr pena's motion to compel disclosure asked alternatively for the district court to simply review the information in camera mr pena even if he did not get the information he thought that there needed to be some court intervention to at least say there was not any untoward conduct here yes it looks strange for these recusals to be going on especially when mr penn yes convictions from his two thousand and nine cases were reversed by this court and re manda to a different district judge because of the initial district judges improper insertion into the plea negotiations in those cases there needed to be some sort of inquiry to dispel the cloud that hangs over mr pinions conviction because having an interested prosecutor which is what these discretionary crucell suggest really goes to the fundamental fairness of the district court's denials and remain on to the district court either to grant the relief requested or at a minimum for the court to entertain the motion on its merits enter factual findings and legal conclusions that w recusals there is the fundamental harm of a system that it appears had a conflicted prosecution during the course of the case but then there are all the discretionary decisions that a prosecutor has whether to charge a crime how much what to charge what to negotiate what information to disclose and that information is difficult to get to but but it appears that there was a harm