this case like to restrict my argument to the brady issue in this case the brady issue in this case has to do with the non disclosure of thank robberies by  fitting the description matching the description of the defendant in the same general vicinity during the same period of time which were not disclosed to the defense prior to trial the standard or review on that issue is  materiality whether that there would be a reasonable probability of a different result i think that's a de noble standard or the view i don't know that there are factual findings by that the only factual finding that the district court made in this case was that it did not correct and you compare it to photographs before coming to this conclusion that this was an untruth test and well there's a question as to what he did he knew that rachel and he has testified after the fact yes that he they had meetings and that they tried to determine who may have been involved in the bank robberies in november of two thousand of member twenty eight the november thirtieth whatever the point is he never considered whether those particular bank robberies might have been committed by the same person who committed the bank robbery on september twentieth of two thousand but this testimony only post trial  what he said we don't have any knowledge of for the fact that's what he said he did during the time that they were investigating but i would submit that the reason he didn't consider the nov twenty eighth and november thirtieth  bank robberies as being relevant to the september twentieth bank robbery is because jernigan was already in custody he had charged that particular case and he wasn't wasn't even considering the thousand bank robberies were dismissed in that in connection with a plea agreement that rodriguez guy goes entered into with the government which he pled guilty to the december december of two thousand and one bank robbery however richard testified that he had quote clear paper with those particular bank robberies nov twenty eighth to november thirtieth and that that rodriguez guy goes had admitted to those particular bank robberies now the problem of course  he never came never there's no evidence in the record that he had asked rodriguez guy goes about any other bank robberies including the september twentieth bank robbery for which jernigan was charged and convicted  and twelve two thousand and four he said the court so you're saying again from a credibility standpoint at least mr richard the bank robbery right across the street in the thirty day period robbed by what is variously described as hispanic feet plus or minus one hundred twenty five pounds is spent looking along here with or without a gun and you wouldn't consider gee that might be the same person the witness yes or i don't want to minimize what we would have done certainly we would have given the thoughtful consideration but after we reviewed the facts of the case or the facts of the cases and the descriptions we would have made a thoughtful deliberation in conjunction with the police departments associated with those investigations and at no time after we reviewed the facts in the case and as in the photographs and the descriptions did we ever conclude anything with those threats of robberies the first three and those two were committed by two different robbers well that's what he said in two thousand and four i submit that in two thousand and one he was not considering the september your honor when the when the the descriptions are so close so close location a witness if the descriptions female his fanuc may be asian short very short five feet or believe that that that his subjective view but it's what governs that spirits it's the object of facts of how closely related these particular descriptions were and how one one bank robbery didn't mind twenty bank robbery being across the now you know wearing jeans that have created an obligation that would be the more generic type of description that might not create an obligation here we have a female number one but that you have the statistics from the f b i females five percent or maybe a little more ninety six percent of bank robbers are females you have an hispanic female again a very small percentage hispanic bank robbery defendants handwritten demand note the same twenty five to thirty years old the virtual you get any of these particular descriptions coupled with the uniqueness of the fact that this is a hispanic female  what is the rule that you would have this court apply to give guidance to f b i agents in the future as to whether unlike this case they have some sort of a duty determine here is whether there's a reasonable probability that the the result would would have been different that undermining confidence in the in the outcome well then the similarity may or may not determine that is there right now when you have such  descriptions that and and bank robberies that occur across the street from each other with descriptions that are virtually identical that it seems to me should should strike anyone as as being the type of evidence that would undermine confidence  to the at least on the fact of the nine disclosure we look to the other evidence so the beneficiation do we take that into account and that your reality as well well that's the that's the issue when whether there's a reasonable probability that the of a different result i know that's that i know what i'm asking my question let me be sure it's clear is in response to judge i was concerned do do we can take into account let's say it's a perfect match on animal and you have the similarity of the script i would that way and into the analysis then as to whether it's serial well that is to whether i think that goes to that goes to the  district courts notion that there they don't look alike that might have some relevance on the issue of the new trial motion whether we could we could show that it was likely to be acquittal it doesn't have relevance to the eyewitness identification which addresses a number of the issues they're talking about eye witnesses and because i'm talking about the two photographs from the video cameras at the two banks that's not eyewitness that is the case but yes yes to the extent that thirtieth the descriptions that matched almost identically the descriptions of the bank robber on september twenty eighth at that point your honor no point out this rodriguez guy goes was not had not been apprehended at that and and we could have we could the defense could have at that point attacked the thoroughness of the government's investigation because it had had chosen not to to associate those particular bank robberies not have been twentieth robbery and questioning the agent on that and introducing the the video evidence to show this other person who could not have been jernigan committing it is a very similar t well yes i mean this the cross examination of the eye witnesses the issue was that the guy witnesses were never asked if the person depicted in the november twenty eighth video was the well that we have a female hispanic it seems to me that's the key point when you have five percent of a bank robberies of color short of that sort of hispanic female they would have had to disclose that i think that's that that's the key guess your client was shoplifting shortly after she supposedly and got five thousand bucks well that is their prior record which was well i know but i mean i g looks most like to their memory of the person from the incident and that they'll continue to do that even though the person the actual perpetrator was not he is not in the photo spread  good afternoon mike morris dees for the government the issue in this case is without the evidence of the november two thousand robberies by an unknown bank robber jer saying goes the camera doesn't lie and the november two thousand robberies in no way bear upon the september two thousand video which is direct evidence of what happened in the bank w it's not a quick banquet it's not ten seconds take the money and run it's over two minutes the bank robbery itself just let me say one thing the last thing the government did was taking the stand again and bring her before the jury box three feet closer than i am to this court and show her hand that you got a very close study in this journey again just to show that you would have seen the tattoos and then she sat down and i said the government rests that's how powerful the video same you know gender same height just you don't think the jury might have taken a different look at mr mccann your posturing over on the video and have someone certain to know and let me when i find it difficult to say is that you are here that you have a strong case and even if we credit that argument one hundred percent it doesn't really answer the question we have to an the others that you haven't had a chance to see judge fisher we're talking about physical descriptions and let me take that on directly the concept that the description of the november two thousand and i know robert british correctly and that's not going to help the agents say grace this traces back to the september two thousand robber wait a minute i don't understand your saying that two witnesses to use one of them didn't pick up the gender the ethnic point and also geography and description and that's why it takes it out of those other cases it seems to me that still haven't with the other side would have had a whole series more of foundation to do examinations of your witnesses her honor it would not have come in and we know this because the district court has already said that he yes well let's take it from there presumably we're talking about now a new feature in the trial that was not before the court in this particular case but it's the saudi defense some other dude did it right  also were started in persons russian which is very close you got to two men of the same race committed assaults in the same area of golden gate park within one hour of each other they're both black similar height and weight and they both have quote let me stay with that we if you go here we have the discussion that it is exhibits two and three that we are referring to  different and that and that's why i'm getting that back to the vital your question which i don't like was entirely answered you make the objection based on the cases you mention yes what are the problem what are the are six forty five and six seventy five refer to the end big u s ethnicity of these two women you had hispanic oriental or asian just for the november robber and you had five different descriptions of the  church and you haven't done anything connecting me to th commit so yes and i'm not sure that the one that says that since the one where she has a vehicle allegedly that they think that she had i don't know what she had done a five by eyewitness testimony there as well or how did they have heard of that one or was that just an m o one ok let me take on that i understand ok i would try to link those two together and say all right you think she did this you think she did the one with the vehicle that we know she didn't do this other one with  saying is we he was just the strength of your case yes she was convicted of having whoever committed that robbery and she was convicted of doing it again but in assessing the strength of your case when she was arrested she didn't have a gun couldn't have five thousand dollars correct didn't have any money right she was living on the street i don't know how much money she had didn't have a car i don't well let me just say on the car i was not important for the september two thousand robbery because she left on foot and there was that evidence there cannot be a brady violation though for just miscount and that's the october eleventh description of the  description doesn't have the same color and doesn't refer to or go trim which is what the other description did the question what did the agent try to fire and i still can't hear brady violation for that but i'm just saying if i had all that information and i were defending around that you know how would i weave it all together to create a reasonable doubt in the trash how would the trial be different when it's a lot different to argue the state can identity when you don't have that video over there were you know so you're saying judge that well then i don't see your cases being that strong i mean i've seen other because you don't have any evidence from the crime you know you don't have she's not found with a gun she isn't found which many that might  judge's decision that we're going to try this one robbery at a time and we're going to keep extraneous rivalries out of the picture is sound and is well supported in this court's case law i'm running out of time let me just try to takes the pictures from the from the bank surveillance camera with respect to the party liability we obviously would have cited crosby and armstrong which are cited in our brief crosby in fact is a case where judge karol in victim that's correct that this was the husband of the victim but there was no link beyond that other than that that he had in the past apparently abused this particular victim but you can this court reversed reversed judge carroll and excluding that third party investigation by the agent in this case with the evidence of the nov twenty ninth of november thirtieth robberies he never never did anything to consider whether those particular two robberies were committed by the same individual who had committed the september twentieth robbery except with the photographs well except look at the photographs yes but he didn't do anything else he never even asked after