i think that if the court would allow me that perhaps i would start with those issues because i believe that if the court can understand what the basis of that is the court could probably understand why they were not able to be preserved at the district court le noted the court has already read the briefs and understand the basis of what the case was about so i'm not going to go into that but one area that i really would like to touch on is the issue with regards to the ammunition purchase evidence that was deemed to be intrinsic evidence also found to be for or for be evidence and it was also evidence that was not disclosed to me prior to trial so that was unable to do anything and i have three issues that are associated with that the first issue associated with that your honor is the in court testimony of miranda quarter ms quarter reed was the lady who was responsible for actually giving the sailor completing the sale be evidence they did your honor civs not be evidence it's intrinsic value on the art of the whole deal while you're on it he said that it's both intrinsic evidence and if it's not intrinsic evident that it would it would satisfy the four would be it's i did not know that the person who was going to give the evidence was not able to positively identify my client out of court as being the person who was actually involved all about the identity it is rather than the ammunition having it that's the same thing it was the same thing the identity evidence was based upon the government calling in the dead of the evidence was was whether he was the guy that was in the store with the with the purchaser that's correct to a certain extent your honor the evidence that i'm worried about with the identification was that when mr quarter testified in the court that the first thing that she mentioned was the ammo purchase evidence with regards to my client being present present with what i'm trying to say is that the record shows in this case that  person who completed the sale the sale of a gun at cabela's requires that the sales clerk who sells the gun escorts the person who purchased the gun out of the store the government presented that testimony at trial and in it she implicitly i or explicitly identified my client as being the person who was actually involved with asking for ammo for the weather really an issue about the density i thought the there was the there was a the  the lady the coconspirator or the upfront purchaser of the straw purchase or whatever you call it the den of god your man too yes she did and that that's correct she did honor that the purpose for which the government asserts or argue that that evidence was relevant to the matter below was never i never had the opportunity to what's the era you're in front of us that's correct watch the air on the ammunition there on the ammunition is that it was inappropriate for for be evidence that it was not reliable but the judge said it was in transit he did even if it was in transit was a part of the after the purchase of the gun was done and the government couldn't find any case in their cars on a visit to the store that is correct your honor but i believe what the case law provides is that if something is supposed to be so is part of the same deal i mean they walk of out of their cars they want to but they want to they can go out of there with a gun and ammunition or it can be in the store with a gun or that they don't that is correct your honor but the sale is basically completed at the point in which the sales clerk walks out of the store everything's done but before they walk out the store to buy the ammunition that is correct so the ammunition according to judge stamp was intrinsic it was part of the deal i disagree respectfully  the stamp was never given the opportunity to assess your position on that never and the reason being was because the government did not fulfill its duty i don't know how one person's maryland to give me the prerequisite information that i need is that they didn't get they did not give me the information that the person who was going to be testifying about my client being the person who initiated the ammo purchased could not identify my cli you didn't know about that until the trial until the sentencing hearing i knew about oh about till the sentencing hearing but did you ever see the picture i didn't ever see the picture did you did you get the material i did not get the  cross examined about the photos show up i did well then why did you give that trial because i did not have the information at trial where you had that at the trial you were cross examining the witness that's correct after the trial about the very thing that you didn't have that's correct so you must have been do something about it or you just stumbled on it that rob you know what happened was while i was cross examining or she then brought out the fact that i couldn't identify the picture was too grainy well that you stop and say your honor i'd like to see what the records of this photo show up i objected on the record i approached the bench we went up to the pit ok and i objected to the identification testimony the dig and the picture they did not they did not give me the picture but what happened when the judge made a ruling the judge ruled at that time that the identification was proper and that probably he was problem that when i say he's talked about t major issues and i think that if my understanding of what occurred with regard to my brady argument that i made was that the agent who had interviewed miss corey had knowledge that she couldn't identify him but i don't follow up stronger on your own i went with everything that i could do with the resources i had available i did but i didn't but i did it and then it if it if it is error hallett's it other than harmless or what i believe that it goes way beyond harmless  where you're honest i think if we look at this in context of everything that happened below with regards to the trial and with regard to the well back to mind it but chief said i'm ninety percent sure that's the guy but the that's a bad picture that didn't sound that's correct where there were no photo no grainy photo if she had to look at no she did didn't he didn't he what their testimony from the agent that she said i'm ninety percent sure that's the guy but the photograph is going i can't be one hundred percent positive i think there was something to be had here to testify the drop at the sentencing hearing right i mean it was that but none of this came in the trial that's correct the you'd already had the trial that's correct ok that's what the whole issue was but knew but what was that i regards to the identity of my client being in the store if the jury would not have heard the purchase of the ammo evidence this is my position that has it but it has nothing to do with the identification and whether or not her failure to be one hun my question is why is her faith under those circumstances to be one hundred percent positive over a grainy photograph but ninety percent positive why is that it sculpt a toy that involves into fake the body because i think  judge judge stamps characterization of it is intrinsic is part of the whole deal it would be reviewed your abuse of discretion even if you objected time i did it's hard to say it's not part of the whole  use with the gun i agree with and i agree with that assessment of it but what the problem is with that is that if you think that your then what do you think the jury thought and what the jury thought is what's entered low in based on questions i had would you just take a minute or two and maybe a minute what do you think your strongest asserted error is what do you think what do you think the strongest argument of error is first of all i think that the strongest argument we have is the argument that i made about the four four b evidence and whether or not it was four or four b s it's ok i think that's my strongest argument thank you however and you had a the what happened here with respect to the witness is that during the end notes like the witness store clerk yes miranda quartering when she was initially interviewed by the a f that initial interview was perhaps not as thorough as it could have been so it was actually during the trial preparation process that it was discovered that there had been a subsequent transaction involving ammunition and it was during this subsequent interview during the trial preparation process that she was shown the photograph so it wasn't a question of whether or not the agent had made a report of interview of it there was no jadzia right up the she would only apply to a recorded statement and what were what did he do when after he showed her the photo he didn't break the notes well it was if he made notes that would be jake's material he didn't make any notes he made no notes be that he notes on the back of the  it turns out she didn't fact tell him you know what if i saw him again i think i would be able to identify any time that you have in a one photo lineup you're get no problem i understand anything or it's it i think are cases all over that say it's doing is creating a problem for you i understand that you need to get stuff written down to make sure that they have it in a timely manner we did he show the photograph to her it was it wasn't when he initially talked to is that trying to gather information exactly when and then later in trial prep somebody had the idea that maybe i ought to talk to her some more and see what she did know is that it's a common thing for tropical you go back to the same witnesses and you interview them more thoroughly just in case you missed anything he didn't even realize that there had been a subsequent transaction of all the ammunition where as they're leaving the score as they're leaving the store ariel underwood and the defendant the defendant turns around and says oh yeah i'm going to need to probably weeks maybe a month it was definitely long enough because i did submit a pretrial memorandum as to the admissibility of the forum for be evidence so that i don't know exactly off the top of my second no no no i don't agree with that i don't think yes you know i think you respond to what my concern is my concern is not i'm not talking about the results of the one photo lineup i'm talking about the fact that it was done in trial prep this into made that bothersome to me because that one photo lineup is suggestive but that was done in trial rep well the agent wanted to find out if this witness would be able to in you he just does what he wants to do maybe a show and it tells you what he's done well rounded on this and that those government agents don't get that they surely get training in something about basic principles of the law of don't they miranda rides say and and in photo lineups got to be pretty close to sort of standard instructions to agent should never marry not a big fan of a single photo display where you shouldn't resolution would be if that issue were squarely in front of us the improper out of court i don't know if that had been raised by the other side has been raised lately about the improper out of court photo lineup but end up getting here it's it should be a drink sack situation that the that the agent wrote down his interview with this witness which would include that picture that picture i i gave her a one photo show up this is the guy that is under indictment but lay it out there that the judge decide whether it's proper or not then we got something we can look at try your honor ask the witness the question do you think you'd recognize the person if you saw him the objection once it was indication that had been some other attempted identification of some of that right well you know i think it's i think it's pretty obvious to everybody that this witness if we just just look at the big picture for a second she has interacted with and that's that's this might be the saving grace for you it's not only good you all are going get another case where you messed around with a one photo shot show ups you're going up but it's  correct that i really don't think there was any real issue as to idea at that point because ariel underwood then why do you ask them where in the courtroom is he here you had this c in the courtroom as the person that you sold ammo to after showing her not a line up but to show up one photo post indictment brown or was her i mean that  because she had seen him and interacted with him before two different occasions two different days so that's why you asked her to identify and i knew she would have an independent basis for her recollection you know but the fact he wanted her to identi makes it look much worse that that you showed a a picture of before she got showed her a picture of where we got the court room i thought you didn't write anything down that you didn't know if you would have an independent recollection of it and that's the reason you gave for why agent was preparing her with that picture to see if she would have an independent recollection we were taking a chance that she would recognize him but i believe that she would have an independent recollection because if you look at the circumstances she knew area wondered where they had worked together and she had been trained on straw purchases she was suspicious that this was the straw purchaser yes they work together to accomplish this thing which is called a straw purchase the actual buyer of the gun the defendant so she sees them on the nineteenth of february when they first come in and try to buy the guns then she sees them again on the twenty seventh of february when they actually complete the transaction it's on the twenty seventh where he turns around after the sale and says the defense doesn't find out about it until financing well the question is whether or not it's it's material to the case and that's not the question the question  perception was that she did identify the guy she was ninety percent sure that this was the guy it wasn't a question it was someone else it was just a question of the quality of the photograph and their title to cross examined and the witness about the prior advance your career that might have some impact on what happened in the courtroom you're correct and which would be that show up with that one photo before she came in here we showed a picture of the guy here correct in that he ninety percent sure he did no you don't it's not just material the cross examination of the witness he's entitled to cross examine the witness on her prior statements about his client and she made prior statements about his client to the officer you say the alep month or so before the trial in preparation he was entitled to cross examine her all in fairly with respect to the state and that he was not provided with them because you say the made up and the agent didn't write anything down correct i remember sponsor that yeah absolutely the standard for materiality is going to call into question whether or not the incident from ation if disclosed would have made a difference i say you're back gargan harmless error i mark i'm telling you that there should be that statement and it should have been turned over and i think the a t f regulations require him to write that stuff down there's three impromptu situation you know where he just decided and then he realized that the photo quality was really bad and i think he didn't think much of that but the fact that the witness was only ninety percent sure is a little different hotly contested throughout the trial and i can he said and i quote my client and i don't contest that we're trying to sit here and tell you that it wasn't him in the video and that wasn't him on the phone call we don't even want to try and tell you that i just wanted to make sure that you all knew that we're not trying to say that wasn't me with the big deal on my house in your point is that it's harmless error if it's error correct and all only point i'm making is i shall be careful understand your concern thank you or like you did everything that i could humanly possibly do with the resources that i had at the district court level with i don't know don't don't know me apologize for what you did or didn't want to use make it legal or ok my legal argument is that i simply did not have th i did not happen i did not have it as the government is saying that we didn't contest identification i mean my client was the one who was in the video we already know that what we're talking about your honor let me ask you this when did you first find out when did you  hearing that occurred two months after try what did you find out at trial when you cross examined her why did you ask what was that discussion about that discussion had trial was after she said that i was not sure about his identification i then i asked her why not right and why she was not she said what and she said because she was not one hundred percent certain at the time that she was interviewed that that was the person who was in the photograph i did not have a photograph with no  opportunity to raise it because the issue pre trial was not known to me i did not know you knew it then i did and i did you not say your honor bench conference i did this this what is court photo lineup i don't know anything about did you say they had gone i didn't say that specifically what you say but i believe that the record shows that i did raise that issue initially with regards to the improper in court identification and as the government is had been shown it sounds like she'd been shown a photo at some point what it knew where each of you say you are what is this about a photo on a window that happened what did they tell me about your honour's i believe i did you may know that went into those specifics but i believe that i did mention the photo and the fact that it was improper for the identification why did you find out or sentencing the judge not required to the or give you more information not after that that's the main reason why i called the agent at the sentencing hearing because i was trying to get testimony on this record for this court to be able to review that you ask him questions like i've asked about here but do you have any notes or anything like i did it he claims that i believe the record will show that he claims that there was an interview in a report it was done but in the report that was actually done there was no mention whatsoever as to about the lack of identification or or not this report could be admissible and that's a sidebar he didn't know what that a photo id photo lineup show what was done at the first interview do you have any reason to think that that's what i believe you're going to with all due respect but i know that that was not provided to me to where i could have addressed that issue pretrial or even doing as you understand it was in the second interview close of the trial when i was a photo show i believe i did find out some information with regard to that but i did not find out about the second interview until the sentencing hearing and that was when i was able to find out that the government's agent had knowledge that she was not able to identify it so therefore that knowledge  testimony you said i did you want to but i didn't know the extent of what i didn't know if i didn't know when she had told somebody else about i didn't know when i didn't know if you know something about it said the judge stamp clarity there's been a photo lineup at sight of this courtroom that i know nothing about your and i cannot say that i used that definitely i can only tell the court that with regard to preserving that objection i believe that i did the best objection that i had at that time available to me based upon the information that i had i think each and every one of you all very much for my time we thank you very much your court appointed and yes i am your own but we appreciate the work that you and all the court appointed lawyer