impeachment but that unfairly prejudice my client todd because despite two court orders requiring that production despite repeated requests from me for this specific piece of that it instead was withheld and despite the government possessing this key piece of evidence for three years without turning it over on the eve of trial interrupt you for me when we know what happened here tonight i know i can certainly understand why you're upset but brady doesn't require disclosure on a blanket basis before a trial as as i'm sure you know there are a lot of cases where the radii question volved disclosure during trial and what the law says it least as i understand it is that the government fulfills its obligation by disclosure app trial not it in vance or trial unless because they chose to disclose it at trial you can show that you are so prejudiced that the defendant was prevented from receiving a constitutionally guaranteed fair trial so could you direct yourself to why this late disclosure was so prejudicial that you didn't get a fair trial yes specifically the video issue contains multiple multiple camera angles and this is a significant amount of footage i was given it three days before  witnesses be recalled i did not your honor i don't my best or whatever well and let's try to put this in perspective too and mean i understand you got this late in but my am i correct in understanding you are already had one hundred and six audio recordings for audio video recordings and to pocket audio we were recordings one recording of a phone call and three recordings of other phone calls i did your honor none of which show you know you so you knew exactly what the government's theory was in this case that whether whether your client was in the car or whether your client was in the the restaurant their theory was wherever your guy was that he was directing this transaction there is never there was never a question about being theory was or i did not know that their theory was that he was the one conducting the transaction no the audio none of it that they did produce provides any information or evidence in support of that video doesn't exact opposite it is very key parts of it such as the fact that mr jackson is talking on the telephone to believe it was either the confidential informant or the leader of the drug trafficking organization had never spoken to seen or heard of my client i did i know that he was on the phone at the time of the transaction as the video shows because i'd only been given the you know a couple of days or and in the middle of trial my understanding is that the government's theory was that mr todd was in a gold car at the scene is that is am i correct that that's what the government's theory was they did mention that at one point yes so the fact that it was jackson going in and out of the white castle would not be in conflict with the theory that mr tague would be an old car masterminding me transaction that's another that's another issue your honor that the late if you have the video pivoted me from affectively providing i had a trial because i did not have time to search the multiple camera angles and hours of i this so called gold car and determine whether there was anyone in it i'm presuming that if  a grandmother and her grandson parking and then walking into the white caps which goes to my point that had i had time to review this in analyze it and make effective use of it i would have been able to make a difference in this case and the government's image had this for three years they knew about it ringback her book under multiple earths to produce it did not and i specifically requested it for these very purposes i was actually under the impression that he must be on it hand and some point they're going to drop that on me but his exact opposite it was both exposed to him peaching but the timing of the last minute disclosure prevented me from looking over the leader of the drug trafficking organization i was unable to ask those questions of mr jackson because i did not know the information at the time because i do not have enough time to review what they produce to me and i'm not undermining the difficulty that the government put you him in terms of timing here but my understanding is that there were seven hours of video that right yes you're now you had you had three days ringback in which to look at that video correct yes your saturday it's better to sunday and monday and then the trial resumed on the trial started on tuesday yes or so i mean i want to give you another chance if you would to explain why in the light of the us that you didn't ask for more time or asked that these witnesses be recalled if  some point you determine that you would have proceeded differently i just don't understand i said it's two thousand and twenty and if i had that opportunity again i would i moved or missed trial under the brady violation because i felt like i thought like the issue was in my mind so concrete because the court was well aware of this presence of this video and my efforts to get it and the fact that the government ringback had it for so long and held onto it became my focus at trial i would note in the sprite case it was it was the court who actually ordered the witnesses to be recall it wasn't court had a duty here without him being asked to sue a spontaneous order of the government to recall witnesses are you no no you are i'm not i'm saying that in the spy case in order to court in this pri where the government for whatever reason provided the brady disclosure late or during the trial where the court has reversed that conviction without somebody without the defendant having asked for a continuance and or recalling the witnesses if the claim is the information would have changed how you cross examine are there any cases that you're aware of your honor five case in which the court did say that if as in this case we have filed a motion your i see them out of time you can finish your answer thank you you please your honor i think i've done everything technically i know how to do here but i will try to speak more loudly thank you regarding the brady issue as the court points out brady does not generally appl wasn't aware that he wasn't aware it was in the u s attorney's office and i think that it was just simply crossed wires between the u s attorney's office and the agency are you saying that he stated that he personally was not aware of it or that the u s attorney's office was not aware of the record said i was not aware of it and i was under the impression that the parties were having trouble opening it but i was mistaken in that apparently so that was the explanation and beyond what's on the record there i don't have a further explanation regarding the late disclosure your honor been turned over earlier and beyond what i've just expressed to the court i don't have a further explanation for that but the question is whether there was prejudice here and the united states did turn over this white castle video on friday may th the trial began on the following tuesday the st witness was called on wednesday and so is the basically five days after receiving  that witnesses started testifying and of course as the court pointed out in his oral brady motion a trial mr todd's counsel did not ask for a continuance and did not ask for the recall any witnesses who already testified he simply asked for an extreme remedy which was a new trial he did not specifically say how the video if that had been get even earlier would have made it reasonably probable that the trial would have turned out differently and there was other evidence to show that mr tague was in fact involved in a conspiracy to deal meth the evidence has to be considered now mr long buyer can correct me if i'm wrong but in looking back through the trial record in preparing for this oral argument i didn't see where the video and its entirety had been did it into evidence what i did see were seven screen shots that mr todd's counsel has selected from the video to use to cross examine united states witnesses at trial and so the video is a whole as far as i can tell is not in the trial a whole only the five screenshots so if that's the case that it's not in the trial record for you then saying that it's not something that's in front of your honor it's my it's my estimation that it's not if it's not in the trial record i'm not sure how it could be reviewed defense counsel is going through the tape it would have been looking for the girl car and he's the one that shows which screenshots to show and simply didn't apparently chose not to show the girl car now interestingly enough he has not said today that he he missed the goal curry couldn't find it because he didn't own up time he only found it afterwards we've not seen that in either the brief or the or the oral argument today so what  do we make of that from the government's perspective we're on or the united states had witnesses showing that although mr todd did not appear in the white castle video he was directing it by phone from apparently a go cart least that's what i get from from reading the record and specifically ms while she was talking with mr todd on the phone at the white castle and said there i that correct i don't i'm asking for your verified your honor that is my memory of the record having read through the entire trial record i believe she did say he was in a gold car  well one of the confusing parts about that is it's i read someplace the thought that that the government's theory was that todd was in was in the car that it turns out the accident was in but that but then i read anastasia's testimony he didn't say  so it's a little hard reading the briefs to figure out what is the claim here and what's the response your honor as i understand it having read the trial record minor standing was that mr mr t was in a gold car and that ms lyle was communicating with him by phone when he was at that gold car at the white castle so your recollection is that the government never claimed he was in the car that apparently your honor i honestly do not remember as a sit here which car jackson was supposedly in i don't remember all right thank you for taking you were not at the trial no your honor i was not the trial lawyer as a by the way has since retired but i have you know done everything that i could and reading the record to try to understand everything that happened at trial so we believe that the court should go ahead and affirm that denial of the brady motion it's up to you how you wish to use your ok your honor regarding the four hundred and four issue reversal is proper only if the district court committed a legal air missing the prior evidence for an impermissible purpose relied on clearly erroneous facts and finding that the prior acts occurred or abused its discretion in weighing the evidence is provocative and prejudicial value under rule four  unseen test and as explained in the united states briefs the questions that were asked were not answered in the affirmative and the district court properly ruled that the council's unanswered questions left unchecked but i think that the district court would inquire about that and ask why the questions were even asked in the st place in this case the united states counsel said he was asking the questions to help refresh recollection and also to prove the identity of mr todd and prove that he was part of a gang that was part of a conspiracy to sell drugs within the d he was asking these questions to try to establish the conspiracy itself so under four hundred and four he is i understand that is a valid purpose for asking questions such as that so i think the question about somebody being in prison and a question about is that he's a member of this particular game that was his intention asking the question so he said your honor and i agree that the question could have been asked more artfully but that was the reason for it as explained in the record again was there a request for a curative instruction if there was a problem at the time of the exchange actually your honor there was colloquy about this at the bench and mr long buyer and the judge agreed that no limiting instruction to the jury would be appropriate at that time or desirable at that time but instead the issue would be deferred until the final jury instructions and the court did in fact include instruction in the final jury instructions  saying that the jury has to consider only the evidence and the lawyers questions weren't considered evidence and there is a presumption that juries will follow jury instructions and so it seems to me that what could be done was done here well that's just part of the pattern instructions that wasn't anything that would have been specifically requested to deal with this particular incident so i'm gathering from what you can tell once the judge deferred this until the instructions there was no request to deal with this in a way other than giving the normal instruction your honor that is how i saw it at the district court with the issue i didn't see anything in the record specifically instructing the jury about this particular line of questioning of this witness but well i guess so i guess what i'm asking you is you didn't find anything where it were the question was raised again on behalf of the defendant at the end of the trial no your honor i did not i didn't see that in the record thank you thank you i see that my time is running short and so briefly regarding the racial disparity issue beyond the reason set forth in the united states brief i think it's important to point out that the government to which mr todd's counsel referrers is actually  kentucky attorney the courier journal article that's in the appendix for mr todd's brief talks about this this policy but it is to be applied prospectively in two thousand and seven are valid and have not been overturned on constitutional or any other grounds those convictions are properly part of mr trop mr dobbs criminal history as set forth in p s r and a district court did not hear by opting not to address directly mr todd's racial disparity sentencing argument i see i'm out of town and it's time i went over a few seconds i apologize ok thank you thank you but the the image is the same with the video i was not able to use the actual video because i could i didn't have time with all the other tower persian activities but in seeing my client who was an hour or half away to be able to splice the video or use excerpts of it in the way that i normally would let me let me interrupt you just make sure i understand this did you have time to review the whole video i did i did have time to review the whole video the issue is there are really so you know let me ask let me ask the question this way then have you found any cases where somebody's got the brady material l bet closer to the trial than they would have liked to them don't use any doubt about that and they actually had a chance to review of all of the brady material but then the court said that  they were deprived of their right to a fundamentally fair trial because of the there wasn't enough time to think about how to use what they had reviewed are there any cases that you've been able to find that that slice that  finely i can only refer back to the bailey decision and then i can only distinguish the spry and the other cases that do it and there is that there is a an argument that  because it is a video and all those cases we're dealing with reports transcripts small amounts of written information this is a video which is a totally different world i would submit per hour having to review and make sense of multiple angles and multiple hours of footage and piece together in a short amount of time in then used the technology to make an effective use of the trial your opponent has said  is not in the district court record is that correct if video is not in the record the screenshots that i was able to who are in the record which show both the whole angles and significant amounts of time respond i do not believe so because i think the absence of the you know if it goes to the prejudice and that i was unable to make effective use the excerpts that i was able to use i believe provide criminal justice act thank you for your service to your client and he suggested thank you thank you your case will be submitted and that you may disconnect thank you