the issue is whether homer was entitled to discovery of the information in possession of the government showing that james was acting as a government agent the disagreements in the case seemed to center around three main issues issue number one was warmer in fact entitle to the information issue number two in determining whether vollmer was entitle to the information do we consider the record as a whole including the information that came out at trial and issue number three assuming vollmer is correct in wanting to know is this court somehow precluded from granting relief because of concerns of jurisdiction and or  and various sellers of methamphetamine got the methamphetamine for him almost offense was entrapment his defense was that there was a person he knew only as james who had approached him i have told him that it would be very helpful for him james if the former would make arrangements to sell to the undercover officer joe and that was the reason that former got involved in the sale of the meth and fed to me that he was a user was involved in the drug culture but would not have in any way been involved in the sales except for the induce of james i don't want to lead too far into what you've identified as a subset question but i want to be clear in my mind entrapment was the defense at what point in time during the district court proceedings did it become clear that entrapment was the defense i disagree with that entrapment was almost a defense in that case what happened in what as i understand the district court's rulings and the defense the defense was that we have a cia who's working in this case but he was not involved in the that was never appealed to the district court at the time and at the time the trial is opening the issue comes up again defense counsel says our case is going to be entrapment district court says i'm not giving you the discovery however i'm in a way down the road to see whether i'm making can this court look at the record as a whole is that they brought it up and the magistrate judge is saying i don't understand why this is relevant and help it comes up again pretrial the defense version is  a judge was a final ruling we would still like the information but as it were we don't have anything additional we're going to bring up to you clarify something for me that i was unclear of in your briefs and that is it sounded like you were saying or i'm not sure was directly raise the issue is the government's involvement government informant or not is the government agent that's that's the issue that's where we're targeting now and that's where we say we're looking at the record as a whole that only came up during the closing argument  our basic position is that when you look at the record of a whole and they're saying genes is not an agent he's just not an agent there is information in the possession of the government which is relevant to that issue that again a couple of things that are that i want to pressure on it is not in passing this is a big part of their defense and it's not the evidence don't show there was some statement along those lines but it's he's not in egypt statement is james important part of our team he's continually involved in drug investigations and testimony of the fuse the taking on cross examination the undercover agent who made the buys i met this guy through a confidential informant a confidential informant someone who works with us a confidential informant is someone who signed up through paperwork confidential informant is someone who gets some benefit payment or reduction on charges and this confidential informant brief me about former given those statements there should have there is information in the presents in the possession of the government that should have been provided so that when the government is going to make that argument drug buddy he's got his drug buddy in trouble his drug goody comes to him and says you know if i can score some good drugs for my boss joe and there there is a case or so i don't have in front of me those sorts troubles me to some extent is yes he did the informant's involvement in the criminal activity was yet at that initial stage but then you got six more and it did go to the jury and there was information that would have rebut it an important part of the government case if the government had set it look this case or each everybody knows that but look at these inducements then we don't have our case but what the government did is they withheld information showing us one agent and then argued he was not saying that look what's brought out of this is informant been used on numerous times et are you saying that what would've made a difference in this case if they knew he was an agent right given the government argument i'm saying that that information had to be revealed yes and that would have impacted things how that would have impacted the entrapment defense because there's a reasonable possibility that the jury went to the first or out and the four story out in this case is that before there can be any entrapment there has to be inducements by government  hit and went forward shook my wife and and the the defendant's statements are version is that this guy just kept pressuring him he would have been perfectly you know if one would have satisfied joe and helped his friend james he was one and done the guy kept going back to him and kept going back to him and kept going back to him until finally he said hey you know i can't do was involved in the subsequent contacts you know what i'm saying is almost position is that if the first they would have done it and joe said hey this is great and then james comes back and says we're cool now i'm working my guys it's almost out he doesn't want you know to continue to do this he continues to do this because the police officer continues to call him and also the police officer offer some hey i'm making money from my mom with wants the information pretrial so that they can call talk with cheney and see what changes going to have to say and if this point there is a possibility that james comes up and says yeah i was working for this guy this was the hook i knew i knew this would get it done we have a situation where and given that james had nothing to do with the other six transactions it's not sure clear how much other than say other then maybe saying see not only did james commit and say all this stuff to my client and not only did he use all these inducements on my other than speculation as to what might have been said about about james which is true in any informix case is that you might even shows an agent not we would have been able to show he's evasive because that was the that was the whole basis of the it and then because the district court had no idea that this had been raised before it in fact had no idea that there was a confidential informant the prosecutor then a former judge hey this is this isn't timely because they didn't object to raise it to  that it was not raised or appealed to he will that was untimely and that would be a jurisdictional ruling but that can't in the end be right suppose the case has changed suppose entrapment isn't being pushed as the defense proc prior primary than it was not an abuse of discretion then by the magistrate judge and since the course focusing on the district court the second point i want to make very clearly is that the government readily admitted to the jury that james was a confidential informant who had introduced the undercover officer to mr valma that was admitted by detective to know all the government's only witness the record on page one ninety six to twenty three to twenty four to twenty five to twenty six demonstrated change was not involved in these drug buys and importantly he's not a government agent we know nothing about him there's nothing to support he was an agent and in fact the instructions blah blah blah blah blah it is not enough for someone has previously acted or been paid as an informant by the other side or federal agencies we don't know the status we don't know if he's an agent or not that's the whole point she couldn't have been entrapped by chains we don't know anything about changed but the prosecutor knew something about james that's not true i think the prosecutor was trying to did the prosecutor know about james the prosecutor knew the chain's was an informant and the prosecutor was the only person in the room who knew much of anything about james the active as well but i understand  at an earlier point i think maybe before the magistrate had said james was an agent there may be off the cuff but i think there had been conflict and one of the arguments have been conflicting positions by the prosecution on this and that for i think what the prosecutor was trying to get at w very specific jury instruction that the jury had in front of them and that for entrapment to be it has to be inducement by a government agent and it's not that the person had ever been an agent of the government but that it was the nature of the government at the a government agent yes and the argument being offered by the government was that he's not a government agent but the argument i think was that at the time of the crimes charged he was not a government agent because that's what the jury instructions also have that that's fine but how is the defense supposed to deal with that issue with the defense isn't told who the hell james this or what relationship there is or how to find him how is it that information is not critical to the defense because person whoever james was and it obviously they knew his they claim to know his name he he was not involved in the crimes charged by well i'm not i'm not asking about that matt think it's probably not correct and i'm not asking about that you just conceded that whether or not he's a government agent is a critical issue in the case how is the defendant supposed to speak to that issue of it if that doesn't know who james it is the defendant presented his defense very  know without any information about james the could the government comes in at the end of the case and says james is not an agent and here's this instruction our guy is in egypt and whether you say the question is whether he was an agent at this transaction or one hundred transactions before even if you're just saying now that the government met he was an agent in this transaction they're entitled to know that to find out to find out whatever information the government had that would indicate whether or not this transaction james was an agent of the government and how are they supposed to do that what you're suggesting your honor would then allow just about every defendant in every case to seek disclosure of the conference from form of by claiming not they said we don't know anything about james james as an agent then don't argue that to the jury at like the very least but they did it the private government argued that to the jury said your we have no idea we don't know well i mean you can't think government made the government said we don't know if there's an agent or not and i have to say what offends me is that the government has to know the answer that question and the government knows that they haven't shared the information so the prosecutor is the only person in the room going to answer the question and yet that prosecutor is arguing to the jury we don't know who this person is this is something amiss there i think again what he's trying to focus on is the specific jury instruction which says that determining if they're a government agent you have to look at the circumstances existing at the time the person's activities in connection with this that are in connection with the crimes charged in this case and at that time what did the defense know the defense counsel know about ja to argue that we don't know anything about genes that it was certainly was not required to at least at least respond discovery to the defense and say we don't know if that's really true but the government said we don't have to make discovery work and make discovery but we're still going to argue leaves minimal jury you can't find was an agent well and then step back for a second to the information provided both to the magistrate judge and the pretrial included no facts about what type of entrapment there was it was a bald claim of entrapment they never said what what the entrapment was what the inducements were and when we get to the inducements here i think is that the court already admitted the overall claim of entrapment was highly suspect data suggests that it requires that another entrapment is a concern that the government may take some my favorite fact is he apparently did not change his last name but he's willing to do the deal and i don't quarrel with the proposition that tackling almost every entrapment defense is weak and this may be on the weaker side of the scale but i'm not sure that matters for th predisposition of the recorded calls the replete with them i think here the prosecutor's language again i think while one may be a north pole was focused on the jury instruction that's not his focus was that during the commission of these cries we know there was nothing about the informant there was nothing about james james was nowhere to be seen because he wasn't going to happen to fast that's really not the point if defendant isn't he's probably on tape you know he can't do much about it but if he isn't contesting the fact that he sold the drugs his defense is i wouldn't have done six drug vice that shifts away to what the motivation was was defendant actually induced over his well something he wouldn't have been predisposed to do so on and so forth that's what becomes relevant and it's like four or five times you've drawn a distinction that i'm simply i managed and i think the distinction or what difference it makes since true the instructions make reference to two entrapment requiring that the inducer be a government agent i'm not sure how the point in time matters because defendant doesn't have information about what relationship has with the government at any point in time other than the fact that he serves the content confidential informant for this case and in front of the magistrate judge the government sought to maintain the confidentiality of the vanity because they're hoping he's going to produce useful information in other cases which at least suggest the existence of an ongoing relationship with the guy but the nature of their life it was something the defense has a blank on and  so that's a critical issue at the government can't argue directly about the nature of the inducement because defendants the only guy there to testify about it james isn't there so you can infuse the defendant's credibility and you do and you can testimony against what defendant says with regard to the nature of the inducement so that's why as i read the closing argument it seems to me the government falls back on emphasizing as it properly can under the law but changes in the government agent so none of this matters but that's where the problem is because the defense isn't given any information about james there's no question about its relevance at that point the defense does this is hamstrung is handcuffed you can't say anything the reason the jury hasn't been told anything about changes defense hasn't been allowed to know anything about change itself so that's where i have this problem and yeah i think the case against against him may be a strong case but isn't he entitled to the information that's relevant  no i don't believe yes and the again why focus on the crimes charge there was also a bunch of recorded calls that were not for whatever reason transcribed and again there's no mention of james in those either make a difference if your honor i believe that that we then move into a different standard and again the defendant can't meet that burden the plane or the standard because again the whole issue of the entrapment was just something a jury would buy the jury disbelieve the defendant for many reasons because he was clearly predisposed to the crime the the tapes are replete the record of sleep with the defendant talking about what a big drug dealer he was how he sold four ounces a day he said oh look at the sundance apartments i sell drugs there i sell over that apartment he talked about he shot himself in the foot after he got in a dispute with the manager because he was selling drugs at the place he had four or five different sources for to purchase drugs which so he was predisposed and he clearly wasn't enthused because he never said hey guess what i'm doing helping james out and obviously there would have been much better ways to help james or to show that he was an agent that there just wasn't any entrapment yes and so therefore under the standard of review for that there wouldn't be with the phrase i'm looking for a the confidential informant was not in fact that and the defense was able to employ to present their version of the facts and even if the jury had accepted everything the defendant said the result would have still been the same because this was not entrapment does the court have any questions about the other two issues if not i'll submit on the rest of my time thank you if they had presented a mistrial during closing argument our position is we'd be in the same position we are here now that basically because of the procedural posture the only thing that the court could have done at that time was declared a mistrial and started over and that's what we have to do now at this point is get a new trial this the second point the point about you know there was no entrapment there was sufficient information to go to the jury and the problem in this circumstance is that the jury didn't get a fair shot at because they didn't have all the information in front of them and there was a reasonable probability that they may have convicted otherwise there's also reasonable probability they may not have been sure i understand you say there was enough to go to the jury and to the district court have the opportunity to say this defense isn't good enough i'm going to declare you guilty and i think it goes to the jury no matter what doesn't i blow i think there's a minimal showing that needs to go forward in order to get it all right it is low but that's the point we're not a super jury we're not here to say hey if we were on the jury box is it isn't a plane here that i haven't got a stack one entirely in my own mind but those are the alternatives i hear from the government to say that it doesn't get you straight on right or wrong there are these other issues that must be weighed as information and we would have a fair shot to try the case to the jury it's not a harmless error because one of the two elements of the offense or of the defense information was withheld i mean that impacts due process under the fifth amendment under the district court had the opportunity instead of suicide want to declare a mistrial what our position is and that goes back one of the second things that i talked about is that when you look at the rule very old ruling you look at it in the context of the entire record and when you look at it in the context of the entire record it becomes clear that information that this guy james was an agent was in the possession of the government and it was not disclosed and it should have been if they're going to make that argument at trial i mean that i think that's in