morning ranko back here present with her on behalf of her lead on us for our guests the question is whether the district court abuse its discretion and deny my motion for a new trial by not giving significant weight to the cash coconspirators in the case this is material because there was a reasonable probability of a different verdict if because essentially because if the jury believed in this ghost they would be convicting don't us vargas she was a ghost she specifically stated that she cooperated jose rivera prez multiple times and stated basically they had a close relationship and stated that jose maria revere pereira's was also involved with this so  that witness testified that testimony was already bolstered before he testified when you have two and luna who basically i consider to be together because they're both in vermillion miss goes testify that she went on a trip to vermillion south dakota received methamphetamine and specifically that she observed a yellow hummer in vermillion so then black aluna come and say we had a yellow hummer so she did cooperate specific details basically stating that what they're to testify in is truthful later on so as as the trial proceeded she was the only government witness that did not seem to have some kind of incentive to testify on be in in i guess in exchange for some kind of benefit from the government is that correct that the u s page twenty one of the trial transcript she was asked by the prosecutor what you expect for testifying today and her answer was nothing but the other three all were cooperate  correct and we know that was a lie when she said that she was not going to expect anything because she'd already received cash shortly before and i believe as this court has noted in a risk in that there was essentially an implied understanding that she would be compensated later on and she bell and some of these course decisions with regards to risk and you were supposed to have broad latitude as informants their credibility is a major issue were looked at their bias to the motivations behind their testimony basically what i could come up with was that she testified that she had had twins about four months before and that she had relapsed shortly after having twins these payments were on november st and november th right around the time she relapsed when you have dealing with cash completely different in the cases cited by the government government was no accountability for what purpose this cash is being used for fact there's a very reasonable argument that that money went to methamphetamine and when she was receiving essentially the government's money funneling it on accountable to we know that this drug user credibility as a major issue it was a it was a relatively small amount of money on three different occasions and really by the time of trial there was just two occasions  right so while that's certainly useful cross examination how would that have in your in your estimation have really to the scales is that is that enough to sort of topple this whole apple cart that's comes down to she she provides information she gets paid it was she comes the jury she actually testifies differently jury trial she talks about storage units which she had never disclosed before a jury trial the jury trial her amount her quantity is increased jury trial she starts talking about vehicles a hummer escalating these types of vehicles her testimony was impacted by these cash payments because it did change things you said was new storage units different types of things that of course you know we look at and say well the boy you know that's drug dealing but those things weren't disclosed previously and so i could cross examine her on the fly based on that new testimony but i don't know why that are how that was influenced or why her that was the cash i believe one hundred dollars one hundred and fifty dollars you know i bought breakfast here in st paul this morning i can tell you that one hundred dollars goes further in sioux falls and it doesn't seem paul and one hundred dollars in certain areas goes further than other places than a dozen sioux falls we're talking about payments that are strictly cash where there's no accountability and we have no idea where it's going to go and for whether or not it's the sioux falls police departments at doing this where they have a drawer full of cash that they can basically use not disclosed to anybody and not tell anybody about or whether or not it's any other local police department around that's why i'm calling for i don't know of anything else to do you know basically a bright line rule when cash is used it must be disclosed because that's the only way that we would be able to know that  essence whether or not these informants are being one of aided by something which we would otherwise consider to be a black market you know we're basically government would be part of a law and just as cash game cash flow if this was affirmed we would basically be allowing local police departments to use cash giving them no real incentive to notify prosecution let alone the defense and that's really concerning for confidence not in this verdict but in confidence and all the drug conspiracy cases to determine whether or not those informants had been you paid in cash you could say it was there but that it wasn't prejudicial right that it should have been should have been turned over you should have had that in your arsenal context of everything you know basically the other evidence was law enforcement found some of thirteen grams on my client's possession otherwise it's law enforcement police officers testimony that was not influenced by miss ghost testimony was influenced by the money so we have law enforcement if you take away which was where her influence the lies all you have is a thirteen grams that was fought in my client's not enough for even the fifty gram count so what her influence or i'm sorry what her testimony influenced the other individuals or the jury's perception of the other individuals giving them more credibility she knew my client the longest she knew my point the best she was they were partners for six years it's one of those situations where this person it was side by side according to the government the entire time so that testimony great credibility to the jury basically come it came in unimpeachable because as she said she had nothing to gain for testifying so it's very hard for the trial the of for me to tell the jury that some of this bias and motive is not pure and that's right i think this money comes in and that's how i think this case should be decided because you know when her testimony impacts the others bolsters the others for the witnesses that are coming in later it does impact their credibility and it tells them that will blanca is probably more credible because margaret knew him too as more credible because margaret knew him jose rivera prisoners more credible because margaret knew him and those were the only lay witnesses they had so she bolstered all the other credibility of all the other witnesses just by the presence of her saying their name or just by the fact that she mentioned the yellow hammer and things of that nature and that's where it's material because i think it's reasonable to the probability is that we'd have a different outcome more than that it comes of the confidence of the jury verdicts with this one and others because this was motivated by cash we know that now you know my my client told me i guess i'll say it's through the rumor mill of the penitentiary that she was paid through cash or paid money to testify i didn't really honestly believe  that money was a part of this and how many other cases that i have had other people have had where the drug conspiracies have informants and evidently there's a drawer of cash is being use agent harvest and over thirty years of experience  insignificant payment but yet typical and that's very concerning when you have a dea agent who says this is typical more concerning is that we have the two payments before faith signed up and one of them  yeah yeah so this is not one agent doing something roque this is a part of their system this is something where they are should have policies and evidently they don't about turning this stuff over to the law to law enforcement or i'm sorry to the  prosecution or law enforcement doing this basically on their own now we have the payment afterwards was at the direction of space cunningham made it and then there was another individual who who was involved with that's the county jail total of six dollars were involved in this but knew that my name is jennifer ma'am and i'm mrs united states attorney for the district of south dakota i was trial counsel in this case i'm and did represent the government through the motion for new trial i'm here today to ask this court to affirm the district court's decision to deny the defendant's motion for a new trial due to a purported brady violation as we noted at the district court level we do agree with the district court's  determination concerning the defendant's brady claim in so far that there was favorable evidence to the defendant that was not disclosed before the trial i'm however it is our contention tom supported by the district court's finding that that evidence was not material because the evidence of the four hundred dollars worth of payments made to a government witness margaret ghost was not material of this district court did correctly find that the defendant is not entitled to a new trial and that brady was not violated do agree with the description that she was really difficult to cross examine it and this would be the one thing that would provide the jury with an understanding of a potential motive i don't agree with that contention by the defense ms ghost came to the trial in jail clothing initially on direct testified i am being housed at the asian county jail on a writ for purposes of testifying at this trial i'm residing in the south dakota women's prison where i'm sitting on a parole violation she detailed that she had three prior felony a detailed a long history of methamphetamine use detailed a long term relationship with this defendant where they had multiple children together but what about a motive to i understand you sort of general credibility as to you even in trouble before you're sitting in jail but a motive to actually exaggerate  perhaps stretch the truth try to corroborate things that she wouldn't it what else would would be her motive other than this money was there anything else at trial that that was available for cross examination of her from my view it was the ending of her relationship with orlando don yes marcus so this is a woman who has lost custody of her four children and has been left various times she testifies by this defendant while he's dealing drugs and she's dealing with the children and this is a woman who i mean for all intents and purposes appears to be a woman scorned testifying to the jury about her involvement this defendant so i think that that did give mr callbacks some fodder for cross on why you're here why you're saying what you're saying about this defendant and that was a line of cross during the trial it was your honor yes and it was also presented on direct that their relationship had ended by the time that she took the stand at trial  evidence in terms of a brave violation is material when there is a reasonable probability that the result of the trial would have been different if that evidence was disclosed ultimately we're looking to see whether or not the jury's verdict confidence has been undermined and in this case that has not happened here even if evidence of that four hundred dollars worth of payments would have been disclosed and prior to trial that would have just been two at the trial and for some of those other motives that she had to be there to testify you probably have to add in the latter part of the money too in the analysis when you because the testimony would probably be well or the cross examine well you've received two different payments and you're hoping to get some more right yes your honor and i at the district court level during that would ensure hearing i took the position that we would not have to disclose that payment in reviewing this further or i do believe that the subsequent payment would have to be disclosed under our brady obligation and why the ways and even newman paid at the time of the trial at the time of the trial she had been paid the two prior payments be a brady violation and i may not be forced under brady to disclose that this court has not weighed in on brady being implied really past that trial level so for that reason i'm just trying to understand how it would  he would be used to impeach the witness of the whole point was this money would the payments could be used to impeach her but if she wasn't testifying anymore it certainly wouldn't be used as a direct impeachment but maybe casting a light on her testimony generally to the district court again i don't think it would move the needle and i guess it might corroborate that she was expecting more or something if that was part of the argument but yes and if that was part of argument certainly well what about this argument that's being advanced that handed out walking around money to people that we expect to testify against folks and and these are people to whom you know every one hundred dollars is is a matter of life and death to him in some ways right because if i can't get my next high you know i'm not sure i'm getting through life right i mean you know if you think about how addicks think feel there are no magin what what would draw looks and feels like this is a real thing you know  that that and if we got a bunch of officers walking around doing this all the time and nobody knows it's bad for the system and undermines our confidence in the entire system because you know while they can't buy you or me with one hundred dollars there are a lot of desperate addicts we can buy for thirty five dollars if that's what it takes to get high and i understand that argument i don't know that it fully squares with the brady definition of materiality which is the issue i think that's before this court but when we do look at that type of practice so to say and then i look at the facts of this case and what's before this court we're talking about a woman who gave information to law enforcement from most for years before she ever received a payment so this is not a woman who was you know if you come in sit down we promise we're going to give you money we've got no evidence that on the record we have evidence of eight nov st twenty seven thousand one hundred dollars payment for about four years worth of information  detectives faith estimated that she'd given information on eleven dollars to fifteen dollars people by that time the next week she got paid another one hundred and fifty dollars amount for information in a totally separate case the lead to somebody then the additional one hundred and fifty dollars payment after she testified after she called detective speight and said i have no money at the eighteen county jail i had i need personal a fax can you please help me  than the record of the deposit i'm assuming at the jail that's how it was subpoenaed correct yes scuse me is that was there any record of the money being given out from the law enforcement self in other words were they keeping track of the money that was being paid out to various witnesses or potential witnesses yes your honor as in the new trier the motion for the new trial adventurer hearing exhibits one and two are receipts that pertain to those november  st and stop and payment i did not offer an additional receipt from d c i as that was given as the jail receipt i gave that is the exhibit but they have kept all they do keep a log system of this as i noted the district  level it is simply something i didn't inquire about and something that did not cooperate to operation so if one wanted to seek out the information it does exist in a recorded fashion i just was not aware of that we were in a practice of paying people for information versus doing a controlled by situation which has been the vast majority of my other cases where i've used a cooperating witness so the u s attorney's office could put in place a procedure to make sure this information is discovered absolutely and  already has been done certainly has so many court this idea that it's bad for the system can be addressed by the u s attorney in the law enforcement agency absolutely and it has been think the court has any authority to order is being done in every trial that goes on in our district now so that is certainly for me been a learning experience and something that we won't let slip by again and when they said it wasn't what was the phrase they said well this happened fairly routinely is that is that referencing just payment of witnesses and then that's disclosed and everyone knows or was it fairly routine that that this particular situation was happening that that witnesses were being paid and that was not being turned over to the prosecution my understanding when they used the term fairly routinely that dealt with payment of individuals who are working more as confidential informants doing controlled by type wor so in my legal experience those are the kind of doctors i'm getting are obviously this person is being paid because they've shown up here today they've done this by they've been wired up and then the payments exchanged i think the situation with ms ghost where she's been really where we have just a pure source of information coming to testify to try well you mean you followed up and spoke with the police department about the previous cases yes so i could think of maybe one or two other cases where i had a source of information testify at all and that person was not paid when we look at the individuals who we do have testifying now when that consideration under brady of the weight of the total evidence of this trial we're looking at other individuals who officers this is not all that uncommon with kind of like ordinary street crime kind of things like they go up to the homeless guys and say you know maybe one thousand and fifteen bucks on if you tell me you heard anything about you know this building has been vandalized you hear or see his being the big deal that it becomes you know you know you know you get a drug conspiracy case exactly and i think that also looking at through the lens of the regular work of the confidential informant the regular payments that get made that person working over duration of time defendant i'm aside from his ghost we've got many high county jail corrections officer who testified that he locates a half ounce of methamphetamine falling out of the defendant's underwear when he's getting booked into jail that alone would really mean the elements of that five grams of actual meth emphatic possession with intent to distribute count we've also got post arrest this defendant in meeting to officer point that he was in five k he had no agreement with our office or any other prosecutor's office at the time that he did testify and he told approximately five years of involvement with this defendant seeing him with a ounces of methamphetamine on a regular occasions for distribution discusses brokering deals for other people including the trade of methamphetamine for a gun and  the united states supreme court and banks st read key determine that two hundred dollars was enough for brady violation when reading that decision i do agree that i think it sounded like the supreme court was more upset about the prosecution's failure to disclose that because i knew about it through post conviction proceedings and they never did it could make the record clear and they sat and watched somebody lie about whether or not they received any money but two hundred dollars was enough there and i think two hundred and fifty dollars is enough here because we have a similar type of viewpoint from law enforcement who says that we can pay cash and not tell anybody what we have here was and i apologize if i thought space was there the joint task force and they're all kind of working together in a lot of different things but if he is the state agent he does give her cash one hundred dollars that one hundred and fifty dollars he writes it down he puts it in some log another person witnesses it on december st i'm sorry on november st and  th two thousand and seventeen and then on january th she's testifying so we're not talking long term between payments a long time before tween any kind of payment this trial was upcoming they're talking about the trial or the indistinct trial prep mode not really but we do know that this trial is set up for the late january and this is just a few months before so it's not as if this is something that's just like you know money over here money over here this is somebody who space was one of their key witnesses the nd to last basically and a person who had a lot of knowledge about what's going on and then did pay cash to this informant i could test or i could cross examine consistent statements like a cross examine her about the relationship but when it gets down to the bias and motive that was two areas where you're dealing with informants you should have broad latitude and it is something where we were we had no idea this is the sioux falls police department and i know miss ma'am i go in the u s attorney's office is making changes with the individuals the judge asked about that during the evidentiary hearing and that's going to be happening i believe well i also know that people change positions now that they would change their viewpoint that people change positions we're going to have a different u s attorney will have different agents and this is just basically one police department and one district issues out the kota that's concerning to me i obviously raise the alarms that i could to the defense lawyers around the community that i could that make sure you ask for this county prosecutors know about it too doesn't happen everywhere else that's and best i can do that's where i think this court with your billeted to reach the masses should make sure that this case is reversed so that everybody knows that this is serious we're dealing with cash and we're dealing with informants because we compared to other cases this is not something where it's purpose driven this could have been used for anything that i think it's very reasonable that it was used for methamphetamine  she was asked on page twenty one specifically what do you expect will happen for you coming here to testify and she answered nothing shortly before that she was talked about the absence of the plea agreement we know that's not true because within a day or two she asked for money as she received it she was three for three asking for money and getting paid so i asked to take that in consideration and determine that that decision to deny the motion for a new trial was an abuse of discretion thank you very well thank you for the argument casey submitted and the court file an opinion in due course thank you to both counsel you are excused