thank you your honor may the court in the time that i have here i'm going to address a pair of tandem issues that are considered separately or individually or together merit relief at the core of any case is the criminal defendants right to due process and a fair trial in this situation those rights were violated by testimony and evidence pertaining to certain witnesses in the case that had actually nothing to do with him although references to organized crime and the mafia were kept out there were repeated references to  witnesses from this world and if you read the record you can see that the references to this world are a veiled way of referring to the underworld and these witnesses who came in and had t long before trial and in closing there was there were references to compare the world of the her first house witnesses with witnesses from the world of marx or until now infants  special to these repeated references to the world unfairly and improperly imported the issue we contend of organized crime into this case and improperly smeared mr anderson with your honor's there should been a severance granted in the case because of the likelihood of extreme and unfair prejudice confusion of the issues misleading of the jury your honour's on a related note in terms of words or objection to using the term the word their world that sort of thing there was not an objection during that portion of the closing but there were repeated and i stress repeated requests for severance that were raised peepli trial in the papers that were raised just as the trial was starting and that were reasserted throughout trial for this very reason the difficulty any jury would have compartmentalizing the issues separating what evidence pertain to which defendant and such lurid testimony lurid and prejudicial would have the effect of smearing everybody frankly sitting at the defense table and that would include mr anderson so we have on one hand the failure to grant a severance on the other we have the series of eviden most prominent of which is the admission of the statement from mr anderson's bankruptcy exam quote sometimes you do crazy things that statement was made in response to a question about him and fusing some of his own money into the business yet presented alone as a stand alone loop on a tape had the effect of presenting it almost as an admission that it had no relevance to the criminal acts charged in this case and yet you know it resonated again throughout the trial as almost a kind of theme the crazy things was referenced in the opening and again in the closing and dissipating your question it was objected to as an evidentiary i'd actually that's close to the question i was thinking but not exactly the question i was thinking of were you able to to set the correct context what do you mean trial counsel was for mr anderson was he he or she able to set the correct context in which that statement was made your honor if the fact that it came from a bankruptcy proceeding that was indeed mentioned but the way the tape itself was presented and the way it was argued particularly in the closings suggested that it had something to do with the acts charged in this case and indeed it almost invites the jury to engage in improper propensity reasoning because he did a crazy thing here well certainly he did this crazy thing here and they're all related to the problems that he counsel be able to show that that was in fact in response to a question about why you didn't why he put money in and then you could argue that that's that the response had nothing to do with with an arson it was why he was putting money in your honor in fact in the comment or testimony and the tape that whole series of things was objected to the trial counsel made a very forceful objection in fact but i think trial counsel would agree once something like that has happened you don't want to turn around and draw more attention to it i mean it's already caused prejudice and i think the jury was aware it came from a doctor's exam but the question would surely arise why is the government presenting it what does this have to have to do with this case of course it must have something to do with what he is charged with doing here and i am about out of time i'm going to try and save thirty seconds for re this against you but i'll ask you this question also of your time in the perfect world what's your solution what is the thing that really went wrong here in your view in this case well we make a very strong humility very argument your honor and case where intent is is the essence of the defense in terms of no intent to enter into an agreement with this person on the tape there was no agreement entered so when you have issues of knowledge and intent that are at the center of the case and then you present this tape sometimes you do crazy things and then you have these individuals brought in who's very is i reread some of these cases it seems like to get more confused is opposed to the opposite but mr bush showed a received sixty months on the conspiracy count one hundred twenty on the arson and then a consecutive hundred twenty on the use of fire the argument that i would like to make today is that sixty months have to come off as double jeopardy that the  it's a much tougher sell to say that there cannot be a conspiracy to commit arson and then a subsequent use of fire in connection with that felony i think that's the very that's a much more difficult argument  to make it's made by my colleague in his brief the which what's your argument on the sixteen months is that be my double jeopardy argument goes to the arson primarily today is that the  that is the success the punishment the double jeopardy issue that mr bush showed a hands i think it's a tougher sell to say we couldn't because he was convicted of arson and conspiracy to commit arson yes but not to commit  mail fraud the jury yeah and but then the use of fire ten year was on top of those two that's correct so essentially we have a what's the problem if the ten years is ok as to the conspiracy well why can't you have the arson in the conspiracy we receive a sense of two hundred forty months the conspiracy is capped at sixty so if the art arson is double jeopardy to punish for arson and the use of fire in connection with the conspiracy which were charged with sixty months come off the sentence i'm probably not saying i'm still not tracking you because you said if we accept that the the use of fire is ok on top of the conspiracy that would be and you didn't get any extra time did he for use a fire on top of the arson yes we got an extra sixty months because the conspiracy is kept at a five year sixty mount we've got one hundred twenty months on the arson so the consecutive time starts at the end of the arson penalty so essentially we're being punished an extra sixty months for that arson conviction so there is absolutely multiple punishment three of them and i think that's what the case is suggest corona case and i think the cannot get case the corona case the fifth circuit says you cannot be punished for all three of these offenses you could be punished for two of them but not all three count to the arson offense in count three count for the use of foreign connection are charged on the same day count two incorporate the first eleven paragraphs of the conspiracy those paragraphs include the overt action that allege a fire occurred so i thought the argument was that you couldn't charge both the arson and the use and the additional ten years for the use of fire that that was double jeopardy now you seem to be saying that it's the sixty month conspiracy charge no your honor i'm you're saying your first argument is correct the practical effect of shaving sixty months off the sentence because we still have the conspiracy count but you don't object to being convicted of both arson and conspiracy to commit arson on double jeopardy grounds to setting aside the enhancement that showed but the so what's the problem then with adding one hundred twenty on top of those two for use of fire in connection with the conspiracy because that that's double punishment for the same offense conspiracy an  son to me are clearly different offenses under blog murder any other test you want to give it when you look at the use of a fire it's the exact same date as count two the arson i'm not going about the use of fire and the conspiracy why it why don't we look at it that way and say you just got the enhancement as to the conspiracy because if that was all we got we'd have one hundred eighty months instead of  that's the success the punishment it's not double jeopardy i would allege for the conspiracy in the use of fire but when it's use conspiracy to commit arson and arson incorporating the same acts in use  in furtherance in london let me ask it this way it couldn't be any felony referred to in the additional ten years for use of fire be the conspiracy rather than necessarily the arson in this case i don't think that it could be in the cases discussed that i mean there is a split in the circuits between how they view it some of the circuits say for example cheney in the seventh circuit says arson and use of fires the same it please the court counsel marks or tino appears by his attorney traped outline your honour's my hope is to talk a little bit about a couple issues one being my argument that the defendant should have been allowed to cross examine significantly altered the impression of the jury about the single most important witness for the government a witness i would submit that without him they could not have convicted defendants or in tino and perhaps defendant misordered cino testified about two critical points in the case one she testified that the larger suspect in the surveillance video was the defendant sorrentino and she also identified vince bush showed up in the video secondly she told an unforgettable story about defendant store in chino and for showed up and there misadventures on the night of the fire jennifer sorrentino testimony regarding identification of the suspects from the video was critical to the government's case the suspects could not be identified from the surveillance video in fact the video alone would have been would have resulted in a real possibility for misidentification suspect two in the video is simply a very large man with a similar body shape to marks or in tino jurors were asked to compare the defendant's body type to this suspect two in the video the images of suspect two are black and white they were taken through dark double lenses with the lights off in the restaurant and no ambient light except for flashlights suspect tuesday was covered almost completely and he had a hat to cover his head and face and the government knew the limitations of the surveillance video special agent roberts tried to get a specialist to improve the quality of the video and he could not not a single person came forward to claim identify him in the video the government asked their case agent to help the jury with a light opinion about who the shadowy figures were in the video others who testified in court indicated either that they could not identify the defendant sorrentino or that they did not believe it was him despite knowing him personally and even to this day the third suspect in the video surveillance video who appears in both videos with sus two has never been identified with no facial details this case is ripe for mis identification the suspects wanted to focus on why i think there was error on the cross examination i think the judge said you already established that she was biased and this would be i guess he was saying cumulative or unfairly prejudicial or cause confusion because it's a collateral matter and so far as what  say to that first of all i would submit that the car ramming incident was significant and it was a it was there was no other means of conveying that  the jury it's one thing to be able to say to the jury the the witness got in eight and he did divorce with the defendant it's another thing entirely to say that she rammed his car intentionally backed it up and rammed it again it illustrates a level of hate and anger that could not be conveyed to the jury it was critical evidence to expose the jury today so that they could understand why she might come forward with this with there's a labrat story what would have been the evidence about this ramming incident and what what led to it happening at or near the time that she started cooperating with  investigators in this case the evidence would have been that my client's car was parked outside of a business she she was seen driving she gained speed she hit his car she backed up she rammed his car again and she did that repeatedly and that would have been the evidence you mean she just drove up from somewhere else in town and that's where i was and any contact between the two of them right before it happened that's right it impression of the witnesses credibility it exposes bias and it illustrates why she would have come forward nevertheless to the court in this case for him would all inquiry into this event and for that reason i would submit it's not harmless error you have anything you want to say about the new trial motion yes very briefly of course i'd be interested in your thoughts on the judge's rationale but why you didn't meet the standard obviously i disagree but the cell phone records which were sculpturing nature illust they contained a phone call that was made to twelve am on the night of the fire and i think you know they haven't the key is why did you meet the standards under rule thirty three the judge said it wasn't new had all was cumulative and so forth there there was no other evidence which would have suggested that jennifer sorrentino was not at home the players card records or casino players card records indicated or suggested that she was playing possibly plain slot machines all night when she claimed all of these all things occurred that night that was eyewitness testimony incidentally that was not available through any other means and she of course after a break in the jury trial came back and she said that she must of lanter players card to someone else the phone call illustrates that you know it's a phone call from her home to her cell phone what about the court saying this was not new that it was known to the defendant he how could he possibly know about it if she didn't know about his testimony was that he called her after he reviewed the phone records which were revealed weeks later we'd number one didn't know and had no way to know that that there would be a need to prove her whereabouts on the night of the fire this the state the government indicated even prior to my opening statement that their surprise witness when i asked for possibly to be identified prior to opening statement the government advised that that that the substance of their testimony would be for identification so we had claimed to remember that night very well because it was a birthday didn't remember the phone call she claimed there were no phone calls from the defendant to her that night so i would submit that until we got the records weeks after the trial we couldn't of i could not have advised the court that it existed and i my client certainly wouldn't had any reason to know it existed his memory was refreshing once we saw the records thank you very much the world mr we're all next here from the government was a rigidly scheduled for the last back in september that was very much appreciated i also want to for organization purposes submit some of the arguments on the briefs given the fact that they were addressed and the actually don't even didn't even hear defense counsel mention mention anything about antagonistic defenses during her oral argument here she is now addressed only some spillover evidence that wasn't objected to by the trial counsel and mr anderson was represented by experience the closing arguments in references to the world and there before you isn't any issue of prosecutorial misconduct or any issues with closing argument before you is only the denial of the motion to which on the grounds of an antagonistic defenses clearly these defenses were not the jury clearly could have believed mr anderson's defense of i was on this video and i met with the man a man who he never identified but of course the government argued was mr shota and and  that he didn't intend during the course of that meeting to have the purpose of whatever that meeting be arson or insurance fraud that was any defense counsel objected to these claims of argument on references to the world and as miss by the pointed out these references to the world and in the statement that she acknowledges there were references to the her not but for the most part when the court's analyzing that issue mr anderson waived anything about that regards he'd be forfeited if he didn't object he didn't even raise it again in his motion for a new trial it's the first time here on appeal that he actually raises these issues and i would argue that as we decided that this court issued deem those issues waived and not exercise or discretionary ability here to grant plan or review you wouldn't mind taking them out of order a little bit i'd like to hear what you have to say about jennifer soren tino because the defense presents this as more or less a surprise witness you had an order apparently that you didn't have to disclose her in advance if they had bias evidence that the judge kept and then they had the phone records that came in later that they say would've corroborated their defense that she couldn't have been home because she formal offer of proof made before the district court judge a great case there was again just comments as mr perkins made here about what this incident would have been with the business it was it was two o'clock in the morning outside of a strip club when mr sorrentino who is in the middle of a divorce encounters her husband so that gives you a little more context as far as actual evidence i think that the district court was clearly within it sounds christian to exercise reasonable limits in this case because as chief judge kay said there was clearly that she blamed the defendant for the folk poor closure of their home there was also testimony that she would say anything and she was on a mission to ruin the defendant's life the defendant's own mother testified and described the breakup  i think is the trial court was able to in the situation exercise reasonable limits that bias was clearly established in this regard and there was no additional bias that would have been established by getting into this car ramming episode additionally the district court also exclude the grounds of given the fact that this evidence of bad acts of the witness had nothing to do with her propensity for truthfulness or untruthfulness it clearly was something unrelated related to the divorce with regards to moving into this new trial motion is the district court actually found and stated in it that the defendants are required to prove on the newly discovered evidence first there really are two things here there's the defendant's affidavit and how the defendant exercised his right at trial to refuse to testify and he did not testify it wasn't there and so he called her from her home phone then you have these phone records which weren't admitted into evidence and we don't have the force but what i have seen them obviously and they're just simply told records they're not location records they don't tell us where the phone was they're not intercepted phone calls they don't tell us who's making any phone calls or receiving any phone calls they're merely support inference that she was not at the home they support if you because otherwise why would the home phone call the cell phone well the phone number actually which was apparently in someone else's name wasn't in her phone so it's the definitive testimony that it was her phone now obviously they could cross examine her if they have the records even you think it was not her phone i'm not saying that your honor but the any hearing on a new trial in this case but going to that announcement obviously it wasn't newly discovered evidence either the affidavit or the phone records this evidence was in existence at the time of trial the defendant clearly had within his knowledge the ability to remember what happened on that evening or not remember what happened on that evening well there as a second one the diligence in exercising in recovering these phone records would have been an arguments made that it was recognized a couple weeks after the trial this was the records were not obtained by defense counsel until july the trial was in october so we're talking now over seven months later they actually get the phone records so there still has to be diligence at the time of trial there wasn't any request to delay the trial to obtain the phone records there wasn't any request to there was no request made actually subpoena the phone records or how long did they have between the time they found out that she was going to testify and the time that she actually testified there's evidence obviously the defendant indorsed witnesses these bad acts witnesses for the episode were endorsed prior to trial so they argue that this was a surprise  witness was good however i believe that they had and they were prepared prior to trial and then on according to the court's protective order on october the twenty second was when the government disclosed to counsel who the witness was and turned over all the material at that time and that was on monday on tuesday we had listed it through direct testimony from another witness that tina was the one that came forward and identified on wednesday  there was another day that passed she didn't testifies on thursday on thursday mr sorrentino counsel acknowledged to the court at that time that he he didn't even look at the records when they were turned over to him on monday night and then he didn't look at them until tuesday night  so now we have her testimony on thursday they were able to subpoena the the casino records and get the casino records at the time of trial there was no request to delay the presented in their case the case wasn't submitted until monday the thirtieth and there was no request to reopen or further submit the evidence so it clearly basically had a week basically a week from the time that the first information that's sufficient to get phone records while a trials going on while the trial is going on i'm certain if the court would order the lead there are exigent circumstances with within which you can get phone records from from companies but in this case so how can it be said that it's diligent when the there's not even attempt made in this case there was the attempt then ultimately isn't made until july almost eight months in my math right about nine months after the actual trial itself but going through the further factors are also important number three  the third factor which the evidence cannot be cumulative or impeachment and in this case it's both it was merely impeachment and it was cumulative already to the other evidence that they had with which they cross examine her how can it be cumulative you mean the card that showed correct correct they really had evidence that she was that somebody else was using the card the phone records would tend to show that if it's her phone that well again to that regards we don't know what she would have said because she was never asked the phone records weren't there mr sorrentino didn't want to testify and provide the information so either he wasn't diligent in providing that information to his counsel which is counsel could do something with it or they just decided they were going to wait until after trial but on both points i believe it is it was cumulative impeachment evidence in this case and under the and this court prior decisions  motive or impeachment evidence is not sufficient for a new trial motion and impeachment evidence certainly would not be sufficient with regards to the fourth factor there has to be some materiality with regards to the defendant guilt in this case i don't think there was material the the phone records himself were nothing more than impeachment the testimony with mr wood which mr sorts in the affidavit if you consider that that might have been material but you can't consider the two of them together because mr sorrentino chose not to testify he chose not to subject himself to cross examination or any kind of credibility determination he merely submitted something eight months or more later in an affidavit that would not be subject to cross examination and then obviously the fifth requirement is that the evidence must not be the evidence in this case was not likely to produce an acquittal a free trial and that's i guess where it goes to the district court docket to eleven i mean was his answer to the fourth i think that was his conclusion in the end he his answer to the the fifth prong was correct it was that the evidence if used at trial would not have acquittal or was not likely to produce and that's a different statement that was a different statement and then his final conclusion was saying there was sufficient evidence without her doesn't speak to whether it was likely to result in a conviction correct that that was his conclusion after analyzing the five factors and his is an order he also made mention again obviously regarding the strength of the evidence at the time of the defendant the fact that he reviewed the video himself and that he believed he saw the defendants in that video would you address the push otoh i'm sorry tina a double jeopardy question and basically would you be asking us to create a circuit split with the fifth circuit if we rolled your way your honor i believe all i'm upheld the use of consecutive sentencing one of the other underlying convictions was arson and the use of fire was to commit mail fraud but the despair excuse me this court held that the use of fire to commit mail fraud could be sentenced seventh circuit in the other cases that they try to get you to follow because those circuits never follow the hunter they never looked at the legislative intent the summarily concluded because of i guess some fairness or because as the defense  analyzes here well it just it just looks wrong you know these so it's not a yes to judge under squash in that you are asking us to create a conflict with the fifth circuit i don't believe there's a if to the extent there's a conflict there's already a conflict with the fifth circuit with the i'm holding the shriver decisions because i'm holding shriver both clearly said legislative intent in the next in the statute and the use of any felony that they intended it to be imposed consecutive to any felony and with regard to the fifth circuit obviously i think in  brief i've cited there are several cases that follow the corona decision where the fifth circuit so some of the panels have said that we if they were writing on a clean slate they acknowledge that essentially krohn it failed to do the missouri v hunter analysis of legislative intent and in the severn's case the fifth circuit acknowledged the failure corona and basically stated that if they were writing on a clean slate they may have decided differently today however they were bound by the  does seem when you talk about congressional intent it does seem a little odd that congress would define arson and set a punishment for our arsenal which obviously includes use of fire well and then in the very next paragraph say any felony offense involves t e and then it goes further it actually even broadens it in the second paragraph it says even in a felony used i'm going to miss the language if i don't quote it here the problem is is an inherent in the arson itself or the conspiracy to commit arson is of course the use of fire well you're getting into the next step you're conducting the block murder analysis here where i believe because you're saying legislative intent isn't clear so you want to look at the elements which is exactly what the court and i'm holding shriver didn't do but was the issue in corona and cheney in the other circuits that's what they did they just it sounds but doesn't sound fair but if you look to the same analysis here essentially conspiracy and any kind of other the drug trafficking offense or the violent crime essential because it's a predicate offense in this case looking back to the charges here what was charged with the use of fire and furthers of the commission of a conspiracy to commit ar there are actually separate elements of the statute if you did a blocker which i'm telling you i'm asking you not to do because i think this court's already said legislative intent is clear but if you were to do a block berger analysis i believe the conspiracy requires a proof of an ones do involve there were some conspiracies around i believe said that they didn't think the conspiracy to commit arson would be ok but there actually was another fifth circuit case u s b regio that already said that that was ok so even within that it was ok then they actually did a block murder analysis and i see my time's up now i have a few minutes to answer your question you mean i don't i don't think you take a few minutes i just want to know what you say they said it was ok you mean they said in riccio that it was proper to add the ten years on top of a conspiracy to commit arson what i don't recall in that particular point what they did do was a blocker analysis finding there were separate elements between a conspiracy t questions we'd ask that you respectfully request that you oppose the verdicts in this court and the judgment of the district court thank you very well i'm looking at the three of you and you look like you're all anxious to want to get up and say something and so we're going to extend to each of you five minutes and you can do it in the order in which you desire and you got to stay with the arguments that were made here by the u s attorney's office so i'll leave it you will see that a motion was filed before trial and then the issue was raised repeatedly throughout trial mr hobbs continued to renew the request for severance your honors its lawyer the think the case law supports a need to slice and dice issue preservation so finely and we do address that in our reply brief as all of you know when you are writing motions prior to trial you don't know what all of the evidence is going to be you don't know every remark of opposing counsel that might be made either in opening or certainly in closing you don't know exactly what the witnesses testimony is going to be and anticipate based on the discovery and in this case i think we've seen that there was at least one witness who was disclose who the very important witness just prior to trial so with the information that he had mr  anyone with jennifer star and he was going to testify to or that for instance mr pony would appear to be belligerent on the stand and that he or or what some of the defense witnesses that were called by the co defendants were going to say or that there would be repeated references to their world as contrast did with the world of these other nice people we're going to smear at this world and mr anderson has been smeared by association with it because he was seen meeting with that individual who was on the tape so i just don't i could find absolutely no requirement in the case law that required that kind of precise issue preservation you to know what the testimony as at a time be able to read people's mind in any event your honour's i respectfully refer you to pages one through four of our reply brief with respect to the jennifer sorrentino issue which obviously has been a if she were not in the case my my client's situation undoubtedly would have been vastly improved at trial i mean she prejudice all three of the defendants and just looking at the case on paper the charge c that case and it indeed might decide that it is foreclosed by that case but we would certainly like to preserve the issue that's why we now did it in the brief because we may stink on bank review on that or even assert review at some later date thank you your honor thank you very much as a pilot we will next hear from mr power is and i can't recall which case but there we don't have a case where it's just arson in the enhancement or even arson in conspiracy in the enhancement so if that's what the other circuits are worried about then why would you say there's a conflict i think there are cases i'm sorry with the arse with the conspiracy to commit arson and use of fire in connection there with i do think there are some of those yes from other circuses yes and in fact the the shriver case that was some sorry that was a mail fraud in do you think the other side you think the fifth circuit has said you cannot o important question right and that's our case but don't in any event don't we have language in shriver and i mode that would suggest that our courts at least said that the intent of congress is clear the i made case is said that towards the end of the opinion but i looked at that opinion and it does not address what the punishment was it does say that but looking at the case i can't tell that there was any consecutive punishment there between the arson and the use of fire like here where we had that's why i wanted to try to point out it very clearly we've got sixty extra months just because of that we're being double punished for the for the arson and the use of fire in connection with the arson in there is this is absolutely the the same  offense and you know can you look at the conspiracy to commit arson and the arson together there's no way the jury could convict on those two and not have absolutely a use of fire conviction and so he  right and i don't think any court has looked at it and said it's clear one way or the other i've read i think the legislative intent was cited in the mistress one thousand as briefer referenced it's been referenced in some of the cases of the cases but i've circuit on that where they say you eat just congress cannot have intended that but i have not seen any case in all of them that were cited in any of the briefs where they say they believe congress did in ten separate punishment fire not the not the exact situation we have but if you look at the you know the indictment and you read the paragraphs one through eleven in the conspiracy which are incorporated by reference israel edged in count t o it's the exact same there is no way you can look at that and say he's not being punished twice for the same offense and to say that congress intended that there's and there's you know after we knew what mr and you know number one she was going to testify and number two what she was going to testify to the isn't the question diligence in other words wasn't it shouldn't there as you were able to get the card from the casino why wasn't there an attempt to go ahead and get the phone records issue a subpoena and then maybe request some time or request that the court expedited or something like along those lines number one it took a sole practitioner to get the casino records number two we didn't know whether there would be phone records there was never a moment rocket look at judge kazan say judge if you delay this ok case there's going to be a phone record from four years ago which you can elicit which is going to be exculpatory in nature my client had no idea of that and you know during the trial itself according to mr bakker mr michelson the government hid miss sorrentino identity in the hid the nature of her testimony because it was singular they did in a fact of job of that they they they knew that if they reveal what she was going to say then we would put together who it was my client would put together it was so as it turns out i knew seventy two hours before and that would have been monday when i received the reports i do recall that i didn't study those records that night because i had a lot on line  that i was getting ready to for tuesday she was going to testify on thursday and mistress michaelson advised the court that morning before opening statement that the nature of her testimony would be identification i asked why why why with the protective order can't we know before opening statement if we're under this order that we can't tell our clients anyway why can't we know at the beginning of the day and he said in response because judge kay says well that makes sense why not and ms and mr michelson s d judge number one they don't need to know because the substance of their test of the surprise witness's testimony is identification and that's in the record before the opening statements but the government s in withholding her identity and with all and the government decided is the right not to identify her as a witness until during trial i had witnesses that were endorsed with those witnesses were intended to they they all knew mr so you know i was able to discuss those things with my client on wednesday twenty four hours before she testified on thursday morning at nine am that was the protective order and so that night you know when i'm even though you had the materials you couldn't talk to klein until wednesday that's right and so what i'm submitting is that the government took a risk that if if she was not telling the truth or if there was a school to tory evidence out there that the defendant couldn't defense could not get those materials before trial and the government i can assure you was shocked when i when i cross examined mr and teano and and i said to her at some point isn't it true that everything you just told this jury is not what happened that night and when we walked forward and the judge and they and the government asked for my good faith basis for talking about the fact that she might have very well been at the seventh street casino from nine o'clock or nine thirty that night until one forty in the morning wood which is when the players card was pulled out of the last machine and i had it at that point advised them that the records will reveal that the players card records in there and the government said well then we're entitled to those records i said you'll get on it soon as we get them they're on their way across the bridge and so getting phone records from several states away from you know a business that's only open till five o'clock pm when i don't know for one the first response to the subpoena that i sat was no records exist because i had the subscriber name wrong so no no wreck no no no records exist without subscribers that it was her she would have testified that that if the government had her phone records are in the government had phone records of my client which i think refer to confirm her her phone number but certainly my client could have testified to that i believe she would have conceded that on cross examination that stat was the phone she used thank you all very well i will have to say the cases have been well presented thus far and we will take that under consideration and render a decision for you all to take a good look at in due time and i'm sorry right now because of our schedules we can tell you would do time is and i know lawyers really rely on new time so with that i will close this record and we appreciate your attendance here today and you will be hearing from us