my initial remarks to five minutes well of course this case may take a little more time than we have allotted go ahead ok thank you judge once again i  in a rather dismal saga of blatant government misconduct that began as your own is no over a year over a decade ago in what i think i could fairly describe is a very is a scathing opinion rendered three years in july of thirtieth fifteen this court in reversing the trial court's denial of defendant's motion to reconsider did not simply remain for a hearing on defense motion but ordered the indictment of david mark to smith's thus for ever for ever materially altering the legal relationship between he and the government but and clearly by definition that was tr chapman also wasn't in chapman and the indictment was dismissed with prejudice so how do you distinguish this case from chapman of distinguishing it because in this case when your arm is dismissed that indict showing the terms of the car and looking at the at the agreement they had as a contract they could never show that he are at least to a to the prior court satisfaction that he somehow back on the agreement that's very different from that he was innocent or that he was not ill t of anything i understand what you're saying my point is you never get to the point of his of his being guilty or involved the best case i have the cases that say with is a material alteration in the in the actual relationship between the two parties the government and the defendant that in that instance we are deemed prevailing party and i had that same case i think says it has to be a decision on the merits i'm sorry i don't think the same case that you're citing that language from states that it also has to be a decision on the merits i if we are reaching beyond that i suggest there is no way you can define us as not being the prevailing party when you read relates decision on behalf of a unanimous court if we are not the prevailing paudeen i don't understand how anyone could ever be a prevail but the there's a difference between saying you were right on the merits and saying that the contrary position was in bad faith for of course the hyde amendment standard that so the earlier ninth circuit decision doesn't say anything about whether the government took its position in bad faith it just means they were wrong no  respect and conduct come to it from the for that pinion made three facts perfectly clear facts accepted by that opinion found by this court that brian pugh knowingly granted informal munity to miss moore back in through march of zero eight that such a grant of immunity was never disclosed to me as defense counsel until forced to do so to me trial but most important pew's claim of mark's breach of the immunity in aid volunteered specifically described telephone call in july was in have to determine if you agree with me or x whether he's prevailing party in light of our case law and then also whether there was bad faith i think there is that additional element in simple terms and if you recall judge from linda there was no reference to bad faith that was not an issue when not i soon i'll stipulate to that the issue here is the breadth but if you look at the facts found by the court that the telephone call directly contradicted sworn testimony under oath and if you look at the concurring opinion which in more explicit terms said no call a comic way in the break after ms brown testified so this is when you find out that she's been asked she's a new judge we didn't find out she was immunized until after i object in other words what i'm sorry i interrupted you go ahead there's a there's a colloquy after you found out she's been testifying you found out and then you say that there was a conversation you thought it was in and eleven but you but you thought you knew you said you knew there had been a conversation quote in which for whatever reason mr pugh was unhappy with what mr marks was telling  in quote so you knew before this came up during the trial that there was some question about whether mr marks was doing what he was required to do at september thirteenth  that he was uncooperative where they came from i don't know any more than i don't understand why he didn't tell anybody about the immune but you had simply discussions digit not up to actual in fact i did him down here in december with the idea of pleading and then on the last moment on the eve of that rewrite arraignment the decision was made my moet client to go to trial so you've got an intelligent client who has been given immunity you come to a plea to sky sion and you know find out that he's not been cooperative and that there's interferes with his ability to get immunity i don't find he's been immunize i'm never told he's been him a new one let me tell you what i knew on you go ahead what i knew was they had been in the presence of david and kim in march when they first meet you he says basically mark says to what up what's what's going on about us tell the truth when you don't have to worry that's basically what i knew nothing more there was no she just in the it was a full blown immunity well when you say full blown immunity he was not given full blown immunity he really given full blown trip is now going to be from process you know he was well he was given limited immunity which i think there's a lot of confusion in this record about exactly what kind of immunity he was given supposed blown immunity which the department justice rarely gives which is like nationwide immunity they have to go through this specific protocol that's not that's what's normally referred to as full blown immunity he was not given that he was given some form of limited immunity which i have some questions for your opposing counsel regarding that but nonetheless it's been since it was stipulated i think at the last hearing that was here in this court that he was given some form of limited immunity that said if you cooperate we're not going to proceed you know with filing charges or it's going to take into account your cooperation i think it was we're not going to proceed with filing charges which was a limited type of immunity if you cooperate correct i would take issue  there was nothing limited they couldn't prosecute him he was giving verbal immunity which this court and circuits throughout the country have recognized as being a legitimate form of an immunity grid but no i think you might be misunderstanding the question the question is he was told he wouldn't be prosecuted for this mortgage fraud i mean if he goes and robs a bank they didn't say there was no time for that so it's not full i february three o two but what the question is was contingent on his cooperation was it was contingent upon his cooperation yes ok and so we have the situation that arose and that is according to mr pugh he continued he failed to continue to cooperate in july of two thousand and eleven yes ok and that's the whole phone call except the full force yes yes but you knew apparently that there had been some discussions with the u s attorney's office mr pugh that he had apparently tried to four during the extended colloquy that occurred on march fifteenth two thousand and sixteen you stated that just before the search of it was mark's employer in march of two thousand and eight there was a time a promise was was a conversation in which pew was unhappy with what mr mark was telling him so how did you come to learn of that information  knew there had been a question by more or and or kim we had we stay in and they would told cooperate no problem ok that's it i've been a prosecutor and  defense attorney a long time i know that immunity is that did not constitute in my mind that there was an immunity grid well you also had mr mark father was represented was representing him and apparently he knew the father that there had been discussions of cooperation if beyond correct grant let me finish my question ok that there had been discussions with the son despite the f b i says telling his son that they would grant him immunity if his son continued to provide the f b i with information so apparently mr mark came to know of this information prior to trial so how was it reasonable for mr pugh not to assume it whether he you know told him and he should have this one thing but at this point we're looking at bad faith how was it unreasonable for mr pugh not to assume that mr mark the defendant knew would have told his lawyers and there were indications that his lawyers would have no let's drop that view of this ok the whole case depends upon whether or not there was a bridge and the breach is based on a law so i'd like to ask about this so how do we know it was a lie instead of a mistake so we know it wasn't true right but how do we know that it was an intentional lie about the phone call they specifically i didn't it wasn't like it came out on cross but mr pugh sat on the stand during the trial of the hearing at the trial on the issue and said i have this clear recollection we were sitting in the conference room and i remember reaching for the phone and calling mark david mark on the phone number we had where we had reached him back in favor we know we know you don't have to repeat the entire thing we know it wasn't true but how do we know that he wasn't confused because he was thinking about a different case with a different mortgage fraud in a different person and he was wrong but not intentionally right how do we know that you don't know it but it's clearly a legitimate inference that he knew it never  d according to your ruling david denied that call contrary to what the government and judge george is saying there's never was a failure wasn't a fair your memory as you run a put in the decision david denied any such phone call ever recorded in july if you take those facts and you take all of the big all ins with the government calls disheartening blunders  made all the failures of disclosure and you put that against the law what is if someone says to me x to car on such a day i made a phone call are you resting your case on the idea that we need law about the court i guess i'm not sure how we can do that when the district court looked at the witnesses and didn't believe your client believe pew pew was mistaken i mean i don't believe that the i think it's up to your honor's to make and ultimately we were not in the best position to do that at this point in time to after the district or court had a hearing was able to hear everybody's testimony how are we in the best position to make that determines i think judge george is following the government's argument in on that hearing the misdescribed it all came into the what she date what he said without any factual support is that all of the heat they made a mistake about some specifics about that call there was no testimony that they made a mistake about specifics they supplied pyu supplied the with i don't understand how you say there's nothing in the record to support it when mr pugh got on the witness stand under of and said i made the call and we've got a district judge who credited the testimony took the stand twice this is the hearing held in mid trial when he admits to making look call and disk that's the one time he describes how it was made t negligent and pops grossly negligent no i regained and believing that when he could do no wrong i sat in the meeting on september thirteenth and watched him go when we went to the meeting far do you have a case a specific case yes no i do not have all right and so my last question for you and i don't know if the judges have a question what's the burden of proof required for up party to similar to the abuse that you found with respect to judge pro i mean i don't think there's any question the preponderance of the the burden was on us i think we made it and i think it's supported by this court's opinion on the just made please the court peter levitt for the united states district court after a full evidentiary hearing on the hyde amendment issued acted well within its discretion in finding that the defendant failed to carry his evidentiary burden of proving that the government acted with bad faith this burden the hyde amendment burden is as our colleagues in the eleventh circuit  pointed out a daunting burden and defendant fell well short of it to show how bad faith defendant bears the burden of showing that the government according to this court's manchester pharmac opinion affirmatively operated with furtive design or ill will and defendant simply didn't prove it well let's talk about the hyde amendment motion hearing i guess that occurred subsequent to our our previous ruling it appears mr pugh testified that it was not until mr fowler insists quote yelled it during trial and i guess that would have been on march fifteenth two thousand and thirteen power objected to mr pease question of ms brown on direct examination that mr pugh realized he had given mark immunity however mr pugh later testified during the same hearing that it was during the july two thousand and eleven call that mr pugh you know laterally determined that mark had breached his immunity agreement so my question is it seems like inconsistent statements there and when did mr pugh actually determine he had given mr mark immunity i believe the answer to that is march two thousand and eight i believe mr pugh while he has subsequently made many mistakes and said contradictory things mr pugh at the end of the kim brown david mark debriefing with the u s attorney's office in march two thousand and eight day food market the end of that said what's going to happen to me and mr pugh said with no documentation with no authority with no permission said to david mark just keep cooperating and you'll have nothing to worry about so it's your position that he then forgot he had done that i don't know how to reconcile the two statements the judgment he asked about i don't know how or why mr pugh made the subsequent statement that your honor has pointed out which highlights of valid inconsistency so we have that inconsistency we have him testifying about a phone call that definitely didn't occur at least the way he says it did yes we have many things that should have been documented that weren't correct we have normal procedures that would have documentation but then the absence of documentation how do those things not add up to a pattern of such disregard for mr marks of rights that they're bad faith even if not a single any one of them itself is bad faith alone i would respectfully submit that viewed in the aggregate your honor they represent negligence the i'm daley's recklessness i mean it's  outrageous i mean how can you have outrageous thing after every just thing after outrageous thing and add it up to just well i would submit your honor that the district court was presented with that very issue the district court was presented at the height hearing precisely what your honor was talking about mistake number one he gives david more community mistake number two he doesn't even write it down mistake legal error because once you add all those things up as a matter of law that's bad faith i mean i'm not sure where you're heading with what the district what what's the single thing we have to defer to that the district court did maybe the district thought about this wrong i don't believe the court did your honor i think the court looked at all of these things and saw a mistake after mistake after mistake after mistake and said this is bad and i'm going to and did admonish the former prosecutor  a written opinion but this does not serve out the high hurdles imposed before hyde act recovery what kind of immunity was he given i'm just curious because i'm not quite sure people even  i share your honour's confusion the only parameter contractual parameters of this agreement is one guy said the offer or saying what's going to happen to me and the  offeree saying just keep cooperating in nothing is going to happen to it's clearly transactional immunity not just use immunity it's transactional on him i would agree with that and  t this the the district court judge below used this standard and i guess to follow up on what judge freeland asked and into sort of saying mr mark had to show that no reasonable prosecutor would have thought that he didn't know about the immunity or didn't or that his lawyers would not have had reason know because mr mark knew about the immunity i think that i'm paraphrasing but so it's a different sort of way and should we just accept that standard if so why and honor i think it's important when this court reviews the district court's opinion to look at the totality of the ruling that the i think what your honor is getting at is the second part of the district court's ruling on bad faith we haven't even gotten to prevail and part of that's the second part of bad faith the first part is the district court went through the record and said where do we have somebody operating affirmatively operating with furtive design for ill will and the district court found nothing the district court found a medley of negligent errors but didn't fan following and affirmative operation with furtive design or ill will now the second point was the the theory that the prosecutor did not tell david mark's attorneys hey your client has some sort of immunity he didn't but he didn't also tell them another witness has been immunized i believe that's a fair characterization your honor but what we do know is that first david moore knew that he and kim brown had immunity miles mark who was part of david mark's father who was part of david marks trial team knew at least one week before that his  s son had been given some sort of immunity doesn't matter if it's what kind of immunity mark's father and lawyer was aware that his son was him you know he's from prosecution or at least  been some sort of promise but that isn't the real issue the breach i mean so let's assume everyone knew he was it just there still possible bad faith as to whether he really breached or whether somehow if you just decided i have wished i had never done this i'm going to prosecute  anyway and i'm back to what you think the district court did on this on this question of whether there was really bad faith as to whether there was a breach i'd like to look at what the district court said on page nineteen of the just a court opinion which is excerpts of record twenty two it seems like the district court says she was aware he granted immunity and then the next paragraph is mark has not shown that he did not engage in any conduct that pew could reasonably construe as a breach of the immunity agreement i think is asking about to the district court is asking mark to prove a negative to prove that there's nothing he did that pew could have construed as something and i don't understand how that seems like that's a very key move in the district court's reasoning and i'm not sure can you explain to us why that's a move that makes sense i think it's a move mandated by the hyde amendment precedent just as when we were here the last time the government had to prove that this coal be good marks and we heard then there might be marks burnt into we know it is mark sprayed into bad faith but why is the way that you have to do that to show that he did not engage in any conduct that pugh could reasonably construe as something is an excuse obligation when someone breaches to tell them they've breached as it's in pugh's head whether they breach so how can mark ever prove what's in putin's head your honor i think when mark received the target letter in august of two thousand and eleven mark knew or should have know and that page despite my being promised immunity back in march two thousand and eight but the target letter didn't say anything about breaching are not cooperating that's correct your honor that's mistake number i think this goes to a legal question that i did want to get your input on and that's what level do we look at bad faith fixations and so forth and the question is does the government's position overall in the case have to be in bad fa or is that enough that on some subsidiary issue failure to disclose or whatever the government has taken a position that is in bad faith i'm not sure i understand your honour's question but as i read this court's precedent and i'm primarily thinking of chapman and campbell it or it or chapman the government the action that the government action or inaction that causes the dispute we'll just call it has to have been undertaken with ill will and furtive design so and i think that's where the district court may have been going to say that look if there was a basis for the government to assert that mark's had breached then he doesn't have immunity and it's ok to prosecute him we know from the earlier decision that it turns out that was wrong that he  three years yes after mr mark alleged breach became an issue and his trial the government tried to admit into evidence and i think it was august two thousand and eleven memo in which you and us a p you stated and some memo to his supervisor and into the u s attorney in our last interview of marc marc pretended to have forgotten everything why or why or how was it that memo was not located or produced earlier i don't know your honor i know that in the way of this court's first opinion our i ask that everyone search every e mail for any possible communication in this period time period but i don't know that i don't know why that was not prepared on did at the march two thousand and thirteen hearing it's really rather stunning lack of disclosure when there was a lot at stake and just trying to figure out you know these mistakes seem to go beyond mr pugh and going on in the office there and that's  concern as well it also seems like we gave the opportunity to remain and last time we were here for exactly this sort of e mail to come out and you told us that nothing is going to come out so it seems like for you to have made that representation there should have been a question does anyone have an e mail before you argue to us last time i don't understand what happened here i made my representation based on what i knew at the time and that's the  all i can say and so do you have a case that can guide us on whether when it seems like an office has gone rogue say i mean is there any level of crazy even level of mistakes that could amount to bad faith or is your position just complete sloppiness you can do whatever you want as long as you're just sloppy and not on purpose that's just never enough i mean that seems like it's your position and if so what is a case that tells us that your honor i believe this course presided over a case it's an evolving former senator stevens and a discovery concealment there that did indeed reflect ill will affirmative ill will and i don't believe we have anything like that here but how do we know that's necessary how do we know that that that's sufficient we know that sufficient but how do we know that that's necessary maybe this level of the disregard for the defendant's right when a prosecutor's office is functioning at some point is not acceptable do we have a case that doesn't that tells us that's not the case i mean it feels like is it true that we're in an uncharted territory  honor i think we're in a territory that's not only unchartered but i would respectfully submit a territory that would lessen the hyde act hyde amendment stranger evidentiary standard for the recovery of fees in situations like this and we didn't i don't think your position on prevailing party can you please tell me your position and why yes your honor i believe in the wake of campbell and chapman that while mark has received an adjustment in the lead in his legal position he's not prevailed on the merits and he's not prevailed on the merits because this court requires as its judge ward last wrote in chapman it requires some evidence relevant to guilt or innocence and we have nothing of the sort but the is about whether someone should have ever needed to encourage tourney's fees right and chapman itself was about a case where the person was legitimately prosecuted it's just the prosecutor's office did things that were wrong here if mr mark is right he should never have been prosecuted at all right so he should not have needed to incur fees at all so isn't that a real difference from chapman in terms of the purposes of the hyde amendment no your honor i don't think so i think this all turns on the july two thousand and eleven call if this did not occur and the prosecutor simply made this up to vindictively prosecute david mark and there'd been any evidence along those lines then i believe we have the problem your honor is articulate it but we don't have anything like that and david mark did not testify at the hyde amendment hearing he testified at the march two thousand and thirteen hearing but he says he stayed off the stand at the hyde amendment hearing and i was that i would have to defer to opposing counsel but this is they called pugh kim brown and miles mark and they let it ride on that and the district court after considering evidence all the evidence viewed against the backdrop of this case and the procedural history said he's not a prevailing party and alternatively has an established bad faith in the in the case that you know has to bear on his guilt or innocence as any determining factor here whether he's a prevailing party there's also a language about a material alteration schipper parts can you please address that yes there was a material alteration of the relationship of the parties when this court toss the indictment out and just toss the convictions out and dismiss the case certainly but as i'm reading the precedent i'm seeing that this court is saying that if something more if material alteration is all we have then every time a case gets reversed we're going to have hyde  see judge ward laws i'm not going to call it gloss but also a insight into material alterations that there's got to be something that bears on guilt or innocence and here we have a defendant who was convicted of four felony frauds beyond a reasonable doubt that there's no evidence by judge pro who is now retired but presided over the initial case he never said even a hint of the evidence is pretty weak here but but the implication of what we said before is that he should never have been indicted and that's a real i'm still not sure why that's not a very significant difference from chapman it's true that chapman didn't think of the situation as the situation chapman was like this but but here we have someone who was not supposed to be prosecuted at all and isn't that almost equivalent to innocence for all it's like a construct of innocence or something i mean it's why is that not equivalent no we thought he was going to be our best witness against her he had all the dirt on her he'd seen everything knowing if you're on it we know he is guilty but once he has immunity and less you can show that it's breached isn't it like constructive innocence i mean i just don't understand how the implication of our last opinion wasn't that he needs to be treated as innocent because i construe and i realize i'm talking to the author of that last opinion  saying to a clearly culpable defendant you just keep cooperating and will go easy on you as saying not that you're constructively innocent but that you're constructively guilty but you can't be prosecuted unless breaches prove proven that of course is true and that has bring in as us right back to the july two thousand and eleven dilemma which we can't prove it happened this call happened i was trying to look at what  said at the hyde amendment hearing about that call so can you point me to anywhere where he says i'm really sorry i must have the details wrong but i know i think some call happened it to me does he ever acknowledge that he that his testimony before was wrong i i cannot recall but i believe there was something i can find it right now in the record i might have been looking at there on page i was just looking to try to remind myself of this i think he definitely testifies there was a call he does that again yes i am not maybe it's just somewhere i didn't see just now but i don't see them ever kind of the fact that something must have been wrong about his recollection is can you p  to anything like that where he where he basically tells the court yeah i was wrong but it's really just a mistake or he tries to explain how this happened i i can't find it in my notes right now your honor but i believe that was the case at the height hearing it was abundantly clear to pugh at the height hearing that he did not as he testified in march twenty third teen cold david mark from a speakerphone in the conference room in the same manner as he did in february two thousand and eleven she was aware that that was wrong i believe there was a recognition of that obvious fact but if there wasn't the district court certainly picked up on it did he ever explain mr pugh why he did not document the alleged breach no he did not your honor did somebody ask him that  directly somebody in our office anybody and mr fowler did you did in any point in time and he asked him i don't know if anybody asked him directly why he didn't do it why would that not have been a basic question to have acquired i think the fact that he negligently failed to write anything down at any point about any of these material issues spoke for themselves better than him speaking for i think that's academic the i can i don't think i have anything view which i didn't have a fourth insight that obviously this is not chapman this is about what the hyde amendment is all about as judge friedland said it's that somebody's incurring not only a nightmarish three years but legal fees and expenses extraordinary ones when he should never have had to spend one penny well he should never have had to spend one penny only if there was no good faith basis for the government to assert that he breached i agree so that brings us to what really comes it really comes down to that was the distro or comes we know we absolutely know that there was some communication where the prosecutor was not happy with what mr mark was saying all means have campbell of eleven when testimony is categorical in february the phone call made to the same number that allegedly was made in july was a totally cooperative phone conversation just so testified to by m pugh and by a thin gauge in jones's well there's never been the end by mr mark when you test to fill out are you talking about when you said you know there was a conversation when pew wasn't happy with the conversation in my presence proceed with your question go ahead you said on the record that you thought the conversation was in february and unless i'm misremembering it you said as part of the comic way that it was a long time before you ever heard of the case it then if it did i was mistaken is today i'm not in the case in february exactly you said in the colloquy that before you ever heard of the case there were you knew that there was a conversation where mr pugh was not happy with what mr mark was saying i can't answer that question the only time that i was aware of pew being on the happy with the mark we stepped tambour of thirteen september the no except while what happens is they get a target letter i'm miles marked as a friend of mine he calls me up he tells me about it he's already spoken to  just knowledge that he got to talk it led up i didn't take over all communication and i immediately arrange to try to have a meeting because as far as i know david moore it's going to be a whit was supposed to have been a was had a cooperation agreement why would he have been a witness i'm sorry judge how do how can you both say that you knew he was going to be a witness and also say that you did not know that he was cooperating with the government i didn't know what i'm saying is i knew pew was totally on happy with mark on september thirteenth now i'm asking a different question now how is it possible that you would know that he was supposed to be a witness and not ask him why would you do that are you going to be testifying about things that you did that were illegal and wouldn't he have to say then well i got an immunity agreement i don't understand how you can stand there and tell us that you didn't know he had an immunity agreement but you knew he was going to be a witness we're all talking about it if he was phrasing is in terms of immunity there were you munity of course something i understand with david how to guarantee a promise how enforceable at all he was told cooperate and don't worry and that was the basis of the february phone call it into the case i can understand it's a top level there's nothing about a breach nothing about immunity so i not understanding what's going on i want to meet with the prosecutor and we arrange a meeting for september thirteenth i come to the office and it's the most acrimonious contact conversation i mean i'm just all i can do is tell you that what it was was you getting ready to try them having kim is a witness and i don't know who else but i know that he was angry at david and i tried to get him to rethink that i asked him to call me the next there was at the hotel could he did not back off his position that he was going to go forward with the process y h and the fact that he was angry itself evidence that there was some sort of breach here it may have been but it's not i had no reason to believe that but it was another made it if you do a search of me if you'd said to me look your client fell off the truck or decided not to cooperate when but doesn't this whole chronology just fit with the theory that there was a breach you've got a situation where you have a witness who they say if you just cooperate you'll be a witness we won't prosecute you then there's just give me a minute unless zen's there's a conversation by the time you see him in september he's upset well that's consistent with a cooperator who has said i don't remember anything and of course at that point you say you would have dealt with it but there's no way to deal with it because you've got a prosecutor who has interviewed somebody who knows the facts and then they've interviewed him again and he says i remember nothing and now if they try to put him on the witness stand if they're being honest about it they're going to have to tell the other sad and by the way i had a conversation with him where he said he remembers nothing at that point he's pretty useless witness but if he did would when i went to him with david it was to try to persuade him to my did you listen to my question the reason he can't use him as a witness at that point is because he's had a conversation with him in which he says he remembers nothing i know nothing about that but i have some don't they have some obligation to tell me that yes but we were talking about judge friedman's line of questions that you agreed with when you first a back up which is the case gets down to the point where whether he should have been prosecuted at all if the government has a good reason basis to say he has breached he has no immunity we can prosecute him it matters what the government knew not what you knew and it seems to me that what you've told us is a series of events that fit and whether the phone call took place at july from the conference room or some other time everything seems to fall into place that he first cooperated and was going to be immune then he had a conversation where he remembered nothing they sent him a target letter when you met  breach we have a right to remedy that in a hearing that's what the losses and we had no way and you were not given that opportunity and the result were the charges hyde amendment so you have gotten an enormous benefit for your client to get this relief that you're asking for the critical elements that have to be met you talked about how you know that was wrong there's no dispute that the government we've already ruled on that didn't meet its burden or in that prior hearing today the critical points that you have to make is that your client was a prevailing party we have discussed that the second is the bad faith ill will and that's what this discussion is about i want to make sure you understand that before you walk away from the podium i don't have any other questions do you have any other questions do you have any other questions thank you sir thank both council for their presentations i know we took you both longer then of the time that was allotted there's a lot of important questions that need to be asked and issues that need to be address i appreciate both of the presentations very much so thank you the matter of the united states of america versus david mark is now submitted