and at this time we will hear united states versus single constitute a brady violation when after three years of litigation for the first time a trial while testifying a probation officer robert masoud testified that of a key witness was made during trial and so close to trial that the defense could not use that information it was the identification actually witness who was a former police officer who  because i think you as i see you cross examined you made the argument you pressed it home and you're on it with regards to third prong or the third component i would suggest in the government i think that mr kerik cesky gave some kind words to my cross examination of mr masoud but i'd suggest to your honor yes there is prejudice here and if i can explain why it goes first your honor to the beginning of this case and i don't want to presuppose with the government may or may not have done should they have learned that that would with this evidence was actually handled was incorrect but i would submit to this court that when you look at the specific facts of this case that you have any pfeffer who testified in a suppression hearing at no time did the government say oh by the way this was not collected the way any pfeffer said it was this was something completely different and when you have a situation where that case went on as this court is aware that case went all the way up to this court as it relates to the trier of fact that the district court finding that the evidence should have been suppressed you granted the suppression of the evidence and i would submit to this court that when you review the evidence from that stage of litigation and even before that with the filing of motions if you will for omnibus motions that there is key evidence here is to not only her credibility but the potential and i say potential because we don't know what we could have found as we don't have it but the potential of finding more evidence relating to the situation surrounding again who actually sees the evidence who collected the evidence i have to say quite candidly your honor notwithstanding what the government has said in their brief i was caught flat footed i've never had been in a position where i had a law enforcement member say that they lied when collecting evidence and when you look at the evidence before  number of inferences you can draw from this and one of them is that that this person lawit because the evidence was not collected at the scene or the evidence was fabricated and that's what you are urged the jury to conclude or do you suggested that that was plausible and under usual circumstances and if somebody lies about the collection of evidence that's available in france but the alternative in france is that  was a police officer and the and this and this in a suit he was a probation officer and he he couldn't have filled out the forms and he couldn't of filed it with the police department because he was he didn't work for them and that was another available inference and that's the one the jury true isn't that actually will plausible i would suggest no your honor and let me explain why when you look at every single document but more importantly if for example we've  fifty two there's a photograph and in that photograph of the firearm it's the evidence bag and the evidence bag has some key pieces of information including the fact that it was amy pfeffer who testified that she collected that firearm now also your honor and if this court is aware with a chain of custody you have a situation where on the ceiling of the bag there's a signature so it's not just the collecting officer but there is a signature and i apologize because the the photo isn't the best but there's a signature that has pfeffer as the person who supposedly sealed that evidence and i think it's quite telling your honor when you look at the testimony of officer m who was called by us when asked whether he would allow somebody to sign his name like that or vice versa and his answer was quickly no and when asked why says well because that  crime and i would suggest your honor when you have mr masoud she get up there and say he did all of those things that that is something that quite candidly goes beyond what i was able to draw i would suggest when i was able to draw out right at the time of trial i had candidly no opportunity to really investigate the next stages and this goes back to the beginning as this court is where in the appendix there were three motions and women he made prior to trial with the first one being six weeks before the trial began addressing these issues i would suggest to the court addressing these very issues and when you look at what was happening on those issues again at no time did the government say oh by the way we understand that but here's my problem  what you need to show is whether had there been earlier disclosure you really would have would have gotten somewhere with it and that we therefore should conclude that you didn't get a fair trial your client and get a fair trial now we can imagine all kinds of possibilities of varying degrees of problem probability of what might have happened  f like from out of a nail the kingdom is lost kind of possibilities but i don't understand how given the use you did make of it a trial you didn't get a fair trial here you're just asking us to read the materiality test how does the brady situation because it's always true that if something is revealed late you could imagine some hypothetical circumstance where had it been disclosed in a more timely fashion something might have been different but i think something might have been different isn't the test and in your honor i think to follow up and your your question is is that the very heart of it is is this a verdict worthy of confidence and i think i would suggest to this court the answer is still no and the reason being as you pointed out your honor we can do hypotheticals throughout but at the end of the day i mean the tr going to run out of time if i can just answer that question and thank you and the reason that it's more than that is because again you've started the beginning of this investigation there are questions throughout and as the courts mr single ary steadfastly maintained that he did not have that that unloaded firearm throughout in that you have questions as to how the the evidence of the video you had video but the video parts of the video are gone there's no there's a technician there but there's no photographs even asked at one point for the court to consider and in camera view of the law enforcement officers record disciplinary records because of what had within a staffer that was denied i would suggest that if had had a head that earlier again i don't know what the district court would have done but i would say that there is now a real bigger concern as to whether or not this verdict is worthy of confidence if we know that you could not have gotten preference test because as you point out what happened may please the court my name is joseph care chef garrett represent the united states on this appeal at the district court did not abuse its discretion in denying the rule thirty three motion and as a matter of fact the district court heard all the arguments  that mr singletary is making before this court twice actually once right after officer mr t s testimony after which defense counsel made a motion to strike his testimony the district court heard the arguments and said well that goes not to admissibility of the evidence but to the weight of the evidence and in fact said you'll have something you'll have something to point out to the jury or you'll have something to talk about on cross examination so that was the first time the second time was in the rule thirty three motion which occurred after trial in which for the first time it was framed as a brady violation and the district court took a look at that and focused precisely on the appropriate issue that issue being if there was a retrial what would be different what would you be able to do if this realization as to who actually sealed with regard to their fifth amendment issue the fifth amendment issue is not that clear from the record the fifth amendment actually occurred sheet she took the fifth when she was called to testify in some other cases some state cases in which she which directly involved that's what directly led to her her discipline in the orchard park police department so that's where the fifth amendment came in and there was i mean might have been able to interview her call her see community for her and find out what it is she might have said well is a bad actor well she and not necessarily in this case your honor she had some tough before trial before trial that she was long before trial i don't remember exactly how long before trial your honor but there's no claim made that they did not timely receive this information about an officer pfeffer that's not a claim on this appeal that they did not timely receive that information actually it was well before and that then the question is how important is office in fact for and if if u before trial mr getz can correct me if i'm wrong that the information about mr about officer pfeffer being dismissed from her position at the orchard park police department was made known to the defense as a matter of fact there was an article in the buffalo news about it and mr mr mr getz actually pointed out to me to the prosecutor who was trying the case so that was well known that th september eleventh i don't remember if that's the about a month before the trial i would not quarrel with with with that they your honor and so district probably more west probably in buffalo somewhere probably an hour's drive yes so nothing stopped council from attempting to ok record and so with regard to the determination that the district court made no abuse of discretion here the judge who sat through the trial listened to the arguments that same arguments that mr katz is making to this co here today and said that the jury heard in at this trial in a suit cheez it mission that what was on those evidence bags was not accurate and as everything that was relevant here asked the correct question focused in on what this event will this would this make a difference in a second trial said the answer was no and tonight the motion so unless there's anything further from the court i would ask this court to affirm the judgment of the district court in all respects honor to answer one of the court's questions it was actually us who found out that mr f are resigned and we pointed that out to the government so we were investigating was that in the newspapers it was also in the newspapers mechanically i heard from another attorney in the buffalo region because i had an investigator trying to find and i polish it is not in the record because it's but i think it is relevant to point out some of the the issues that the court has is addressed in during in assoon as we had heard about that your honor that's when that first motion and when  kicked off if you will that are august motion and let me because we're we see there's clearly important evidentiary issues for the district court to address pretrial we wanted to make sure that those issues were properly set before the court  and again at that point at no time to the government say hey this is this is they did first they didn't say the feffer was not going to testify that information did not come through that she was actually going to exercise their constitutional right to remain silent until frankly just prior to this trial week before trial the first letter that came through said that but then it then it got into it to address your question your honor to the counsel no i didn't ask for for a continuance i made a motion to  preclude i think that at that time again i was i was caught flat footed but we did we were attempting to try to find this stuff or and i think that's an important note and in that there was no point in time where the government indicated that they w pfeffer immunity as it related to the specific issue with regards to the evidence it was more than the bag it was the testimony because the whole thing switches from this and i think it's important to look at these two avenues the suppression hearing saying i found the gun i found the marijuana i did this all the way down the line it's not until the time of trial that it's mr masoud that saying he found the gun he did this and  i would suggest that that is important when relating to the materiality issue unless there's other questions i see my time's up thank you thank you both will reserve decision