it's number eleven six one two three united states of america versus duane gravely argument to exceed fifteen minutes per side  good morning your honors may please court counsel i'm here this morning representing joining gravely who is a defendant in the court below i'd like to reserve three minutes for a bottle if i may thank you there are numerous issues which every has to my brief and i'd just like focus the court's attention on two of those this morning and leave the rest to the briefs that have been filed the first issue i want to address is with regards to whether or not there should be a new trial based upon a brady violation and then the second issue i'd like to get into is the  process violation that occurred when the government pursued inconsistent prosecutions in this matter turning first to the brady violation i think you know after trial we found out that that mr woods had a less than a lustrous plan passed in front of the in front of the united states district court in nashville tennessee this was found out very shortly after trial counsel for the apple in this case sent a letter to mr gravely who was acting pro se at the time and during the trial and that led to the new trial motion under rule thirty three i don't think there's any question but that that this is brady evidence  t is highly impeaching as to mr woods therefore the question is really comes down to one of prejudice in this case what was the effect of not having this evidence at the time of trial and would it have made a difference in the trial in this case such that there should be a new trial in this case and i think it's clear that mr woods was a significant witness for the prosecution in this case mr woods was not only called as the last prisoner witness in their case in chief and was uses to substantiate the theory for why mr peterson was killed but he was also called witness in this case he was he was kind of the the last thing that the jury heard before it went to final arguments and then deliberation the test that nobody asked him well  significant thing that he testified to that no one else that no one else did was he testified that he had this discussion with milburn this millburn takes the stand for the defense millburn in admits to committing the killing in this case and says that gravely has nothing to do with it and had nothing to do with it it's it is mr woods that gets up on rebuttal and says that no i had this discussion with milburn in some sort of air transport and he admitted that he was just covering mr gravely he admitted that he was going to get some benefit out of it and therefore he you know mr mr milburn is a lot he's basically that was that was that was what the jury heard was  we've got this witness that shows that mr milburn is lying about mr gravely not being involved in this and it's significant because the jury the defense case revolves around the guy that  mr peterson saying yes i did it yes i pled guilty to it and no mr gravely had nothing to do with it then of course the weight of the rebuttal evidence in this case through mr woods becomes highly significant in determining whether or question that there are other witnesses that say that gravely admitted to them but the a lot of those other witnesses had significant issues which if you were sitting on the jury you would have at least if not only taken some of that other testimony with a grain of salt but you could have a minute it all together it was mr woods who was largely unimpeached he was the one that was largely unimpeached out of the witnesses that the government called in this case i mean if you can i think it's  where where he has significant issues with body fluids you know and gets written up for it he is a completely unreliable witness it's mystery but if you take a look at wood's testimony you take a look at the cross examination of wood testimony he's the one that's largely unscathed but had the defense had this evidence not only would he been unscathed he would have been unworthy of any way whatsoever by the jury was the cited in my reply brief to one of those appeals that kind of laid out in short detail some of the some of the problems with mr woods in his perjury i found since then i found his first case are not his first case but one of his cases from two thousand and ten and if i could just read to the court this is actually taken from the district court's findings as to mr woods and it starts out you're painting drama that was tennessee this is the one in tennessee this is mr woods case in tennessee so there was a see some sort of memorandum from september fifth two thousand and three and in this is by the district court in nashville tennessee  petitioners appeared before this court on numerous occasions and this court has found that the petitioner pervasively obstruct justice petitioner lied under oath to the grand jury and suborn perjury when he attempted to get two witnesses to lie to sentencing here and then it goes on to say in this two thousand and ten case that not only did he lie but he ran from he ran from he was let out and he ran and even had tried to have plastic surgery to alter his face so that he couldn't be caught again it's significant significant impeachment of mr wood's credibility  that at the time that i wrote the brief i think there's been another one that's come out since then maybe the jefferson case but that's i don't say the word brady but i use the brady standard and i use  really on point to what happens in this case because in the to vera case it's almost like this case in that there were there were witnesses that testified at least one big significant witness that testified against a vera who said yes he was involved in the case and then we have this other witness who flip flopped he said at one point he was not involved in the case and in fact what is it  exactly is the evidence that the government withheld and didn't provide here the that mr to very earth sky excuse me that mr woods perjured himself in the united states district court on at least two occasions and information would certainly wonder that in that case you just read to us from coming out two thousand and ten which would have been it was actually some tender two thousand and ten that this came out in the trial in this case was march and april of two thousand and it's so that wasn't wasn't available to mr gravely he was acting pro se and was incarcerated at the time he did not act have access to westlaw or anything like that and over and above that your honor the fact whether or not you do diligence doesn't apply to withheld brady evidence and that's that jefferson case that the court that the court made in i think it was like late two thousand and thirteen or early two thousand and fourteen jefferson versus the united states and that says that you don't apply a due diligence standard to defense counsel when it's not knowing evidence that the government is withholding it and that's and that is the essence of brady and that's that's also true through the calvi whitley case which says that you can't you can't impose that that on and on a defense counsel one when the government's withholding it and in this case there's no question that the government certainly had access to this information they they called mr woods they knew that mr woods had a federal criminal conviction there's no question about that he was in federal prison at the time  jesse i think his conviction actually was for guns and drugs and that perjury thing came up and he's seen issue it came up in a sentencing hearing in two thousand and three that go and do that yeah and in it actually came up there was some may have came up even before the mr mr woods actually pled guilty in this case and received a life sentence he was looking for a reduction in sentence and didn't receive the reduction in sentence of his sentencing due to the fact that he'd committed perjury  in this case when you take a look at the effect that this evidence would have had on the jury and the reason that i say that is that there are certainly there are other witnesses for the government in this case each one of them was beat up in cross examination we  have a defendant that actually puts on a defense and that defense is the person that committed the crime who not only admits to the crime but exonerates the defendant in this case and then it's the government the puts on the rebuttal in an attempt to destroy that defense in the person that they use in the rebuttal is someone that they withhold information about that would have destroyed his credibility so you need to look at it not simply just upon the the fact and without weighing the evidence because you need to look and see what effect this would have had on this jury in this case and when you take a look at that i think it's clear that this would have had a substantial effect on the jury in this case in again it was in the i don't remember the exact time frame in which the jury was out you know deliberating but it wasn't in significant period of time anyway even without this evidence with this evidence destroying mr wood's credibility it would have it would have even resulted in a different verdict submission is certainly warranted in a new trial i have eleven seconds for my second issue so i think what i'm going to do is unless the court has any questions about the the due process and consistent prosecution issue i'll just leave that to the what this case is very similar to the ferguson case from the sixth circuit two thousand and ten that we cited in our briefs in ferguson the court held that a defendant suffers prejudice from the withholding of favorable impeachment evidence when the prosecution's case hinges on the testimony o ferguson the court noticed noted that there were twelve government witnesses six of which six of whom testified to the same story i was started by asking you the you can see that turned over had the government not at what point did the government actually about woods's background so in the in the briefs the argument is  whether the u s attorney's office in tennessee counts as the government in this case because it was in two thousand and one that the middle district of tennessee prosecuted woods for this drug conviction and gave him life in prison so they knew and that's what the argument brief is whether the u s attorney's office in kentucky in two thousand and eleven knows what the middle district of tennessee knew in two thousand and one mr mr i would say that we did not know  you know the government doesn't call witnesses for trial but they don't know about i mean you know bay whether it's kentucky or whether it's kind of the going to check the database and   well that's the opposite of attention and i'm happy to discuss discuss that issue and the district court here made made this decision based on the prejudice prong of the brady of the brady analysis and that's what we were going to argue today  circuit is instructive on what the prosecution team is i could just very quickly go over the facts of the case in that case a district the district attorney's office in los angeles prosecuted aguilar using a scent dog the scent dog put put the defendant at the scene of the crime six months earlier the same district attorney used the same scent dog and the same officer who testified for the scent dog and that evidence was well that's that's a distinction that i don't think came out in an appellant's argument here woods was not charged with perjury what woods was not which was charged and convicted to life in prison for drug crimes  so procedure it came out in his sentencing hearing which that transcript was available if somebody were to request it there was a two thousand and one sentencing hearing it was not in it was not in in pacer we looked it was not in pacer there is in the file in our office there is an amended judgment that that sentencing judge made which it gives or which gives reference to this  perjury before the grand jury which committed perjury before the grand jury so that is in the file we don't know when that came into the file we don't know if that was in two thousand it was before two thousand and eleven when this when this case was tried we don't know if it was part of  in this appeal we don't know it was part of a briefing for the rule thirty three motion for a new trial but the sure e was treated to woods's background that's the third not that specifically that he had lied to a grand jury that's right that's the third thing we want to talk about that woods was impeached in front of in front of the in front of the jury page as that previous conviction and i have a list of six things that he was requesting a rule thirty five motion in exchange for his testimony that he was requesting witness protection in exchange for his testimony that he that he had been convicted of a drug crime that he was sentenced to life in prison and then bravely went his closing impeaching mr wood his credibility this was not something that did not occur in the trial the best words admit all that or it was this just argumentative he admitted to it i think  that everything except for the magazines in the tobacco was brought out on direct by the prosecutors and he acknowledged that and tobacco in the magazine issues i think woods thought weren't important and admitted to them bus that was what i was going to get to next which is that this is the second thing that i said i want to talk about that would mr woods was not the only person who contradicted mr melbourne's testimony like like in the ferguson case where there were twelve government witnesses six of whom told the same story here there were thirteen government witnesses six of whom told the same story mr woods was one of those six mr crawford the eyewitness inside the cell the fourth inmate  construct this this theory of self defense and there were three other inmates player thomas and johnson who bravely mr gridley also confessed or bragged about the crime too and the cover up and then there was the pathologist that's the sixth person who testified that the body had been held down and beaten to death mr gravely presented some witnesses on his own behalf as i recall right anybody who was able to really undermine the prosecution's theory here mr gridley put on nine witnesses and a lot of his witnesses were about the videotape what happened to the videotape this was the videotape of the hallway outside the prison and he a lot of his and then he also put on witnesses he put on mr milburn who took the blame is their number which is only inmate  d he also i have to look at the list but he put on nine witnesses test for the prosecution or just for defense mr melbourne testified only for the whately guilty yes specifically for this for this one issue there were six witnesses that testified to the same beating cover up and the same beating and cover up the the four people before inmates that gravely confessed to  testify about  mr woods provided the reason for the killing he testified that that mr peterson they were there was this dispute between the bloods and this d c car and that mr peterson had said f the bloods and that was the motivation allegedly for gravely ordering mr milburn to do the killing that significant also during the rebuttal mr woods testified that nobody else testified to this that as mr peterson lay dying mr milburn mr gridley stood over him laughing watched his eyes roll back in his head watched him stop breathing or just laughing about it and then when they when an officer came in and started crying they laughed at that as well that was the sum of the last evidence that the jury heard in this case was was was what he said that mr gravely admitted to him in this in this manner those those were significant in this case and again i'm going to go back through but the the the problem with this is the to say that the eastern district of kentucky a u s attorney's office did not investigate mr woods before putting him on the stand just knew that he had a conviction and decided not to look into it even though it was a life sentence for guns and drugs when he pled guilty to guinea pled guilty and got a life sentence i've been practicing federal law for a while now and that in and of itself rings a bell to me that there's something going on that's right with a lot of witnesses who would testimony didn't occupy a disproportionate amount of time of the trial that well if you look at if you counting up the number minutes it's not a disproportionate amount but he's the only person that testifies twice he's the only person that testifies in rebuttal he's the he is the person that rebuts mr milburn's testimony who is again the main defense witness who is the guy that can be admitted to the crime and exonerates the defendant in this case it every every every time he got a pen he was subjected subjected to fairly extensive cross examination with you know no he was not but he was sixty he was exposed to cross examination however mr gravely had at a minimum one hand tied behind his back because he wasn't given this information in the end the other or the other cross examination that the prosecutor talks about in this case is not significant cross examination the fact that he had a conviction the fact that he was asking for rule thirty five those are in every cross examination those don't strike hard blows i see my time's up unless there is any other questions we would ask t