your honour's i'd like to reserve three minutes of my time we've raised the brady challenge here and first i'd like to address the impact of the jefferson decision by this court and then i will address the district court's credibility determination at the evidentiary hearing that was held mr stein's case this court's decisions in the two jefferson appeals resolve some of the issues presented here certainly the court found that the hidden deals constituted brady information that the information was material under brady and that the delay in raising the claim was the fault of the prosecution the lived in other words delays were not attributable to the these defendants the further conclusion in jefferson that he mr jefferson could not establish prejudice does not control because the science case is distinguishable in stein's we don't simply have the evidence of the deals after the fact we now have evidence of promises which occur before the trial that the witnesses would be getting better deals in the steins case all of the witnesses relied upon by the district court in calculating drug quantity were tainted instance we don't just have incremental inducements or cumulative ness we have suborned perjury we have a lie about the drug quantity attributable to it seems to me i think you would have had a much better claim to distinguish jefferson in this particular case but for the fact that you had at least a partial evidentiary hearing where the judge weighs the credibility award and finds he has no credibility is inherently incredible so if you take that off the table then how's it different from jefferson well i guess you haven't addressed the credibility assessment i can do that now because i think that i really am just saying it  will use that as a hypothetical if you hypothetically take warren off the table because of the credibility finding of the district judge in this case then how is your house this case distinguishable from jefferson well i think the school and they basically interviewed a lot of these witnesses and we had we had in addition to just didn't have the name for it and i know what you're talking about school so we had the schools memorandum in that case you had tele alexander and he  was you know had we had a hearing we had mr alexander come forward also but mr alexander also talks about promises before the effectuating of the deal after we have a whole number of different witnesses who talked about that alexander's one of the same witnesses in this case happen to be mentioning one this is that in both cases there were others and they don't come to mind at the moment but there were others and in the schools memorandum that only testified in against mr signs the testimony was that mr stein's was targeted as to all of these of these witnesses and let me address credibility because i think that's that's an issue here the judge the judge just conclusion that reza warren is not credible is reviewable de novo because judge bormann is analysis and his process was legally incorrect in assessing credibility he looked at warren's evidentiary hearing testimony in a vacuum and we contend that that's air in bagley at four seventy three us at six seventy five in cows versus whitley at four five fourteen us at four thirty six tainted evidence is considered collectively not item by item sometimes the other evidence shows that the team that evidence is not such a big deal that this case was just the opposite judge determines ostrich approach to wrestle warrants testimony ignores the synergy of all of this information combined he ignores the fact the dinner deals themselves which i think addresses the court's questions he ignored the fact and pattern of the deals themselves for fourteen months i personally scoured these witness files in some cases mr convertino had even sealed the sealing orders enhanced time since file for example there was no trace whatsoever of the deals that would be visible to the public he then scattered the cases in all sorts to all sorts of different judges in violation of the court rule the pervasiveness of this concealment was just stunning judge bormann ignores all of that he ignored the school's memorandum which i just talked about it provides you with admissions by the witnesses it didn't show this initial thing he shows is incredible because it would over his credibility of seen him on the witness stand and so on and you ignored it he only looked at mr warren any doesn't even analyze the other witnesses he doesn't he doesn't  that this mess i think it is it is also clear air but that seems to me cases seem to suggest that i mean that's the sort of finding that we would review and clear and i think you can argue that we should be reviewing that determination to know because you don't like the way in which judge warming this handled various aspects of the hearing i think his findings were clearly erroneous the reason why i say that it's also a legal illegal air and let me give you guys it's worse is corey for example from the first circuit five seventy f there are three seventy three where the district court is required to assess evidence to decide credibility and he then advocates that function the standard isn't clearing where you're not just looking at credibility at that point you're looking at his process his analysis in this case he just he didn't want to hear about the remainder of this case this was a very long in this case it had to do with all of these other witnesses and he decided for whatever reason just to consider russell warne and we think that was an error of process but i understand your argument that the evidentiary hearing should have it should have included other witnesses he should've looked at all these other documents and i get that but with respect to the to the decision of digit warman in connection with warren the person in the courtroom the district judge gets to do and we're supposed to give deference to that so while i'm having trouble figuring out how we set aside how we take this other things into account to say gee warren should have been found to be credible given that the basis is his actual performance in court here's how we asked to put on the testimony of mr convertino the usa in the diocese case for example they the court gave a broader hearing they allowed they allowed the defendants to have the tainted witness they allowed the defense to attempt to call the prosecutor and then he either assert right or not the prosecutor in that case was the police officer he either asserts is right or not in this case we don't know whether or not mr convertino would have agreed that he said all these things to russell or so i don't know how you you know fairly and fully assess credibility we don't even know what judge borman thought was incredible and in this case i believe that all these things were said to mr warren that you can go home to see your you know your son you know do you want to be there when he's twelve all these things were said and i don't think that he could fairly assess even mr warren's credibility without allowing us to call the agents the officers and the other witnesses without seeing to account the deals themselves the  what you call scouring the files in those documentary matters were those in fact before judge borman in the sense that you filed them in you know argumentation or is exhibits or something of that sort and then we decided to just try to unseal everything in some cases they weren't sealed but they had been so then you filed them and then did you explicitly argue that these documents in effect any credibility qualms you have because warren must be telling the truth because of the documents yes and he never addressed the documents at all we submitted the documents we attach them as far as files the text of his exhibits all the way through so yes although all that is attached in the days case and this is i think is crucial how do you find that there's no prejudice with respect to a baby badly violation judge brahman just took it upon himself to say well i don't believe him because of  and i don't think that that's the process by which a badly claim is assessed i think he's looking more in the chambers lines of cases where you're looking at a canting witness for example in in this case i think what the judge had to do was what they didn't die in diocese they allowed the witnesses to be called they allowed that confrontation to occur no prejudice finding in dyess was understandable in that case because there was a second witness to the very same transaction who was not tainted so therefore you could throw out the tainted witness and still use that quantity other cases distinguishable the judge used all of the quantities of all of these tainted witness there are no clean back up witnesses to the to the tainted witnesses here we have even taylor she she's had something like thirty three you know three kilograms street you know large large quantities there's no back up to even taylor it's our position that what should have been done here is that and that should be done now is that every man should happen and that we should be allowed to call all of these witnesses that were in the schools memorandum all of the tainted witnesses that we should be allowed to commas to convertino i don't believe at this point that any of them would have a viable fifth amendment privilege because we are too far beyond we're too far beyond the statute of limitations in terms of what happened to trial and let's see what happens so i think that that's the  warren only was there discussion about whether if he was only going to give you one witness was warren the one to start with did you want somebody else or if he was going to give you one this is how it happened as i understand it according to you i asked for everybody i never waived it all the way through i asked everybody he said because one was the only one that had made it admitted to perjury according to us that that's what he was going to call first in fact julius  in admitted to perjury at mr convertino urging in one of their the first file motions for a new trial so it wasn't just mr quincey number two there's there's no reason for just doing that he shut the door right after i i  good morning minute please the court judge on behalf united states if i could address first the stand your position that the district court made a decision on mr warren in a vacuum that is on mr warren's credibility in a vacuum and i believe the record shows just the opposite district court carefully evaluated mr warren's evidentiary hearing testimony and said it in careful detail against what had happened during the trial and taking place before that same judge before judge bormann and went through a series of evidentiary events very specific events that involved taped phone calls transcripts pieces of evidence that a comment at the trial and did an analysis finding that warren's testimony that was being offered many years later was simply in complete contradiction with the evidence that had come in at the trial and on that basis found that warrant was adversary seems to say that he should have put it in the context of these other activities by convertino in the in this or similar vents that so you're saying he did put it didn't context but only in the context of the trial that he'd seen is that is that not just that you know it what else did he do well he identified and was and specifically said that warren was quote the one person the korean stein's who admitted giving perjure stein's trial the one person out of twenty seven when he says the want he seems to say that this quincy had also admitted to perjury and that and that i don't recall that being raised certainly i don't recall mr quincey being being raised but these other individuals mr thomas mr alexander mr palmer for instance none of those individuals ever indicated that they had given a false testimony during trial and again and again these allegations keep getting repeated  till somehow they take on as if they have an evidentiary grounding in the record this case they do not they do not there are no affidavits from alexander from warren from palm or from any of these other witnesses indicating that they gave false testimony and indeed with respect to the information the school's memorandum and that was before the court during the pendency of this case that was very much before the court during the pendency the jefferson appeal and just be clear these two defendants were tried together or indicted together were you probably it was before before and that was the question i asked in the sense that she said she filed it she says that you know it was before him but he didn't address it in any way is that accurate did not address it in the schools memorandum and that sort of the things that were in that and convert he knows other than that i don't believe it could be accurate your honor that during the course of a six year twenty two fifty five proceeding before judge than that witness but just to put it in larger context the school's memorandum the allegations in the school's memorandum which were turned over to the council first dines and for his co defendants in two thousand and five that was before the district court  witnesses in a separate trial did not involve this defendant and when those events took place or brought to the attention apartment justice in my office yes there was a searching extensive investigation into other cases of mr  sought out and interviewed the vast majority of those individuals said there was no variance variation whatsoever between their testimony and what they said a trial but those materials once they were in the hands of my office were turned over to the defendants not in abundance of caution that's not a person endorsement that individuals who trafficked drugs with mr stiles for many years and had been sent to prison for that their own sworn allegations marriage incineration to a level that sets aside a jury verdict reached after seven week trial but yes they were turned over and yes there are aspects of this case and mr convertino this situation in a different case that are unusual thing reset is they sought them out this was in the sense of interviewing them as potentially creating dealt on past cases yes and mr warren was the in that sense the better everyone seemed like both sides would agree he looked like he was the but the government filed extensive transcripts of each one of those witnesses who were cross examined through lengthy cross examinations each one of those individuals admitted having a deal with the government each one of them admitted that they were hoping for sentencing  reductions and when you actually look at the numbers for mr mr palmer testified before the trial jury i hope to get less than sixty months the recommendation will be less than sixty months you've got us in sixty months mr warren said that he could go as low as five years ten years you're so set against that record yet that's what then even if these things are taken as true even if these unsworn on verified allegations by a handful of the twenty seven witnesses who testified at trial  it's incremental impeachment having to do with with witnesses you credibility had already been challenge extensively challenged before the trial this may be up side the record not particularly relevant but mr convertino was prosecut have your three minutes rebuttal just to follow up to judge on cole's last question he was acquitted however the dismissal of the terrorism indictment still stands because and that was based upon his misconduct so there's been a finding of his misconduct in terms of whether this was a de minimus cumulative type brady violation there's a difference with a witness saying i hope to get x i hope to get ten ten years and his other testimony that the government is going to promise why here that was the lie the government was going to promise a much lower sentence and that's why it's different this is an this is incremental and they had there there were lies that that are laid out in the schools memorandum in terms of those types of lies that what they really believe that they were going to get what mr convertino really really promised  them in terms of the he was asked a question in terms of whether or not the the judge addressed the schools memorandum and his answer was we address in other words mr judge address at the court did not address it yes we were there for six years he never addressed the allegations that we're talking about here the school's investigation began when telling alexander said where's my deal but it game momentum clearly if you look if you look at the timing it gained momentum because i was on moving to unseal these files that's when they start investigating everyone else and that's when these disclosures started to happen  the brady challenge this hearing provides us with a rare vivid lay person's expression of how this type of misconduct distorts the evidence very clearly didn't want to talk about certain people his other sources  at this hearing and you know you could say that that aspect of his testimony was maybe less than candid but i think there's certain things that did ring true mr warren tells us that mr convertino was god in the courtroom i wasn't interested in being accurate or truthful i just needed to keep him happy i didn't remember these events i was high back then that rang true i just said what i had to say to get home everybody was doing it promises were made to everybody that's the problem with inducements like this it distorts the tr