good afternoon your honour's mic please the court my name is roger roofs and i represent the defendants and appellants in this case and the movements in this particular proceeding irwin spruced michael screwed and john rally the spruce are both brothers there at all three of these defendants are serving lengthy federal prison sentences right now that they've all been locked up more than fifteen years at this point and one of the now scheduled to be released if we don't give relief in any respect  time earned this is an unusual case obviously in many different respects and this is an unusual motion in many respects as you know there  was hearings more than fifteen years ago in the eastern district of california under judge carleton who conducted hearings on the defense motions who dismissed for outrageous government conduct  this was a methamphetamine manufacturing and related related issues kind of case and both disproved brothers had previously had methamphetamine manufacturing shall we say convictions on their jackets and so they had been sort of surveilled and had been tracked by the california state bureau of narcotics and for cement and the argument for outrageous government misconduct involved a reverse sting operation actually a series of reversing operations in which the california state narcotics enforcement agents had actually provided the precursor chemicals for a very large meth manufacturing a prize that really leashed but let's just say hundreds of thousands of minimum possibly into the millions of doses of methamphetamine ultimately into the greater california community and possibly nationwide them did find that there was outrageous government conduct in that in that proceeding however he did not dismiss the indictments against any of the three defendants on grounds that they lacked standing that they weren't victims of the outrageous government misconduct because they were you know they had been pulled into the meth manufacturing business and that they weren't victimized by well not that they were called into it that they were already in it yeah that was the finding it went up on direct appeal to this court of appeals and this court of appeals sort of changed the question in some ways and ruled that it was a question of due process were the defendants deny due process by the outrageous conduct or by the conduct of the california narcotics agents the this court of appeals upheld the convictions and for a change the again they they not they suggested that there had been outrageous government misconduct what has really made this case interesting is the fact that we now know from subsequent events especially california state trinity california grand jury inquiries that were launched by the actually i have the foreman here who's arguing pro se arguing as an amicus curiae friend of the court along with me carlton in the motion in front of you know first time round you've already described newland yes my question to you is what do we know now what evidence do we have in front of us now that was not in front of judge carlton well it turns out judge called actually was just scratching the surface because it has been revealed in subsequent events and subsequent investigations i'm just going to pound on five five things are actually a wide variety of misstatements that were made by the four california state agents who testified against the spruce and mr rally in the original proceedings number one  the this court of appeals found that there was not outrageous government misconduct in part because the defendants were already engaged in the manufacture of me the agents who testified were very well choreographed on that point however the grand jury looked into that question found that there was no evidence that there was there with the counsel of the true and we found that that was the reasonable interpretation i mean just because one of your clients said i can't make pure math from sudafed or and so i wouldn't i didn't do it doesn't mean he didn't do it and you know as a trial judge i've had many cases involving the manufacture of meth where they were did not have a federation that were using all clear and sudafed and all those products that you could get manufacturing quality meth from sudafed just because your clients say they didn't doesn't mean we have to believe that just because the grand jury can do a different conclusion doesn't mean you have to believe them does it well i should point out that the judge called me did not find that the defendants were previously involved had already had an operational methamphetamine operation going well he said if the question of whether the defendants were engaged in the manufacture of methamphetamine at the time of the initiation of this investigation w determined of the court would find that they have not borne their burden on that issue they did not prove that they did that they were not so he found that they were and we supported that finding most pertinent to this question is the transcripts that have become known later that were investigated by the trinity county grand jury three separate transcriptions show that john roger rally had no math no cash that this operation that the government claimed existed did not exist and on the initial use the fifty three transcriptions you mean things that the defense attorneys had at the time of the trial they were not part of the record of the of the the the motion to dismiss and they did not go up in the initial direct appeal but those are self serving statements by a drug dealer who's negotiating with the supplier could do to find evidence that they were in a in a manufacturing operation you're trying you're trying an issue that was tried fourteen years ago by a quality federal public defenders who had all the material that were entrapped or that their process rights were violated by the kind so don't tell us what we already know tell us what we don't know tell us what the fraud was here's one of the most important aspects of our motion right now the concealment of the policy manual that the california narcotics bureau was governed by they testified in the carlton proceedings fifteen years ago that  that the policy does not require that they recapture all of the methamphetamine that is manufactured by the precursor chemicals they provide we now know that that they were sitting on that manual and they would reveal only later on by the way this is  manual that should be on the on the shelves of the library instead it took up motion it took a subpoena from a state judge to get this manual we now know why because it contradicts at least three of material points that these narcotics agents testif the original hearing they said they testified that all they had to do is make a good faith attempt to recapture the methamphetamine that was manufactured in fact there's a zero tolerance policy for releasing even a single ounce of methamphetamine in that policy they also testified that they're not supposed to be using i'm sorry they testified there was no bar on them using going after well the policy manual clearly states that there has to be business the what i'd like to do just in the interest of time if i could your honour's have is have doctors dr koch quickly summarize the grand jury proceedings and the findings of those grand jury proceedings and i'd like to what new evidence are you now seeking to put before us that was not in front of the district court or not available to the public defender that the grand jury might have come to a different least on roughly the same evidence doesn't make any difference to me so i'm interested in what evidence there is rather than a different conclusion that the grand jury came to so we've got the manual i got t sources on calculating how many doses can be made from a number of ounces or pounds of a particular precursor chemical we now know that the number of doses that were released upon the community and upon the country were probably just wanted to answer and you're reading from the record yes before this recession they are getting ninety eight credit and we want to know what new information not information that he had what new information i just want to answer your question chest interagency narcotics task force with four known knowledge so i think don't know if that's new in this case or not but judge carlton asked these agents in his courtroom were you aware before you started this case what you were going to do and the answer was yes so they knew in advance that they were going to go into this cooking meth cooking enterprise and as a result of that their intent was to have this released to the public all of this method for me which we felt we followed it through two hundred twenty five thousand cases those that were released to the public not whether this was bad behavior the question in front of us is was there fraud committed upon the court what we looked at was that the agents went to the to the court and asked for an order required to get an order from the court in order to follow the health and safety code and the annual but i think i'm going you can correct me if i'm wrong i think that's they had to go in front of the state court for that he's got her act that's correct so what i'm after is order and he asked the agent we discovered that in the testimony of the grand jury and and judge carlton asked the agents were you aware that then so what you were doing the agent said yes and as a result of that that's when we believe judge carlton understood that fraud was had occurred but the problem i have got and for fraud on the court in order to show fraud on the court you've got to show not only the people lied in front of the district judge because that happens a lot it has to be such a lie that the district judge didn't understand that it that the adversary process was simply prevented from functioning so to the extent you say will judge carlton knew it that doesn't get us to front on the court because that means he knew it already ok we believe that  judge was not aware at the time that the written word was was signed we when we went back through the case we knew that the agent's own testimony said that they committed the fraud judge carlton understood that fraud with his statement that he read in court  was the former attorney but all of us remember being appalled at my age remember being appalled during the vietnam war when the meijer colonel reverie was said we had to burn the village to say that he said here we are how many people got started on methamphetamine that wouldn't have but for the conduct of these agents in our minds that absolutely prove that it was not known prior but through through the court proceedings they found out what the agents had in mind and he went on to say i mean there may be some child out there who is dead because of what happened here yes i think i understand that when i'm interested in  information came to the grand jury that was not information that had been available to the defense or had been put before a judge carlton what new information on new evidence to you we received  testimony that the agents surveyed the surveil these people for six to eight months prior to the start of this operation and we believe that the we believe that the evidence showed that the supply ten pounds of a federal which was a which is a restricted chemical in our state system and and they did not tell the judge that they supplied it and went into a cooking operation coconspirators as it were with the screws and the rally we believe that was not known prior to the they gave them fifty five more  that that they had in their minds we now know because we believe the agents lied to the original judge and also to carlton that these this remain was going to be used to go to the public they were going to in the coconspirators in the cove business operation to quit this mess to allow it to go to the public in order for the guinea to collect that money that they would collect at the end that's what that's what we believe is new and was not known during the trial as a result we they were surveill through this whole time and the and they were the bearly agents could have stopped and were required to stop according to the health the safety code this operation in order to  collect back the meth which they did not do and the reason they did not do the grand jury found out was that they wanted to allow the mass to be sold to the public in order to collect the money back  we also discovered that about one hundred twenty five thousand doses were released we took testimony from our own county sheriff and he told us that fifty doses was about the amount that's required to cause a person become an addict and if you divide those two then it would be about twenty five hundred people became addicts as a result of this operation two hundred fifty those who were arrested sixty two were incarcerated and two or three people died as a result we don't know how many actually sought medical attention but the cash  generated was two and a half million dollars we believe that it takes it took about twenty five million dollars may had to be perpetrated on the public in order to convert it to cash to buy all this  the residue from the cooking operation is the carcinogenic material it was dumped on the land and into the river trinity river and polluting all of those who are you  officers involved and the state refused to prosecute secretary he turned it over to the district attorney yeah and no prosecutions result and no action occurs at that as a result of that you know that's right and then we  we were given this back back and we decided to publish the final report and follow that up which is what we're actually doing today right on the website of the of the hero of narcotics this w new information that the bureau of narcotics and forstmann talented all over the state that they were conducting these types of reversing operate actions and the grand jury asked the question is the largest single producer of methamphetamine in the state of california the state of california as a result we think that this is unconscionable action by these things well and judge carlton  that wasn't quite his word but i think judge carlton essentially agreed with you he agreed and the final statement that was that the grand jury said never is a correct assessment can properly and legally employ a reverse sting that may chemically expose our citizens we wonder is a result of this proof case and also the other case  direct result and what potential life buildings were created for paternity county and this is now i think not necessarily in the record in front of us but i'm not as interested in knowing you know whether the investigation reports of the grand jury have had any effect on the operation of viennese since that time actually we do believe that there there has been an effect and we do believe that the current governor who was the attorney general under whom this were people worked out of his office released a report the very day that we turned in our report and we don't think that's coincidental that they are now   ask the attorney general for a copy of this famous or infamous manual that they and we were refused that information act freedom of information and but in their refusal they said that the reason is that this manual is now being used nationwide and so we are saying the very thing that we complain about and we found that these being the officers were performing illegal actions is now being touted and trained law enforcement nationwide we believe that should be stopped absolutely well it sounds as though however that the manual long had a very different policy violated right now i understand that but what i'm saying is in response to what you were just saying about the manual potentially being used nationwide just which i'm i don't know one way or the other if the manuals are being harmed that sounds like a good thing  yes but if it's been followed to cause illegal method fed to mean to be cooked nationwide we think that's extremely bad thing for the citizens of this country i understand that yes we would we would like to we would like for an accounting of the accountable for what they have done ok thank you very much that you saved about just a little under three minutes but we'll make sure that you get a chance to r it was stated earlier that transcript will first be stated that the transcript began and became known later and it was said that they were not in the record while it's true that the transcripts of the fifty three recorded conversations were not themselves physically made part of the record put before the district document that set forth important quotes like that from those fifty three recordings that was a separate exhibit that was also put before the district court both of those documents were put before this court as well they were part of the appellant's excerpt of records and certainly we may  that section of that letter if you compare that with what is actually in actually in the manual as submitted by the balance today you'll see that with the exception of maybe three words and there's actually an additional sentence in the letter that is not in the manual those exceptions it's the same verbatim so far as the when you look at the actual eight point four five on reversals and what actually refers to the criteria for the use of precursors what is in that manual was put before the district court now what wasn't put before the district court was a number of other provisions within the manual they deal with the use of controlled substances any number of procedures that have to be followed if you're going to use actual controlled substances in your there is no question that judge carlton found based upon both what was submitted in exhibit a to the government's motion and what was put forth in terms of testimony at the hearing that the policy did have any number of the provisions that the parents are claiming they had now just crossed and in fact found that the agency in his opinion did not abide by that policy so it's difficult to understand how fraud occurred with respect to the agents not following that policy correct or yes right i believe so so isn't that how does the issue about the manuals respect to what they were going to manufacture an obligation to retrieve it fit into all of this well judge carlson actually found they really were the record before judge carlton well so the section that refers to the criteria for the use of precursors that's actually consists of two different paragraphs and in the manual itself the and actually so this is documentary be used in a manner in which they may chemically expose the public and that is actually the first sentence of that paragraph if you actually look at the policy manual so it was actually a matter of dispute at the hearing as to what that  hear in this appeal that there was a coordinated attempt to mislead the court that there was an orchestrated fraud that was perpetrated upon the court but in fact when special agent in charge neared testified he said well he was asked about the meaning that sense and he said well that mean to as well both of them said no and in fact it was it was learned at the hearing that special agent supervisor largent actually had a role in putting together this policy he said no that's hasn't actually means that we can't expose of the public to volatile reactions from these chemicals in terms of explosions that sort of things but regardless of what that sentence means judge carlton found that purpose of the policy set forth in the manual was to prevent as far as possible illegal drugs made from chemical supply from law enforcement being sold on the street he says that it page six of his i think he says right after that in his opinion part of the policies requisites and gave way to events and he states very f subpoenaed i believe they could have i reviewed our office file with respect to that question in terms of how it came about that this information was put in the letter that was attached to the motion all i was able to find was a request from our office important that's correct i was not able to find in our file in the court's file anywhere in the hearing anywhere in any of the pleadings that were filed any request made by the defense for anything further or additional or different in terms of the production related to the manual any agents in this case and of course that just taste slides over onto the government united states government is prosecuting these to put on this behavior what's happening now well special supervisor that i spoke with i know that as far as i don't know that i'm able to answer anything further your honor in terms of practice is a very soft used to drug cases in your office no i do not so but i speak now only for myself i have to say i'm deeply offended by the behavior of the b n agents and although it doesn't quite come in the same way that we should have a prosecution by the federal government coming from such behavior well you know there's a statement for to and i understand it to be directed towards the operation of the reversal technique and in fact i would imagine that it's directed towards the release of the amount of methamphetamine is primarily the only so many doctors we have just carlton saying in his order that one hundred and two pounds of the precursor handed over to the screws operation resulting in an in his calculation hundreds of over one hundred thousand doses of may actually be many more than that but one hundred thousand is an awful lot to away and making its way into the general public is too much methamphetamine walking out the door and i think that if you look at the transcript before judge carlson agent diaz in particular expressed repeatedly the fact that in fact he he was agonizing over the amount of expectation you're going to catch some guy distributing meth by surveillance for six or seven hours or so you're crazy well so i not trying to take issue with your honor's conclusion that  there's a problem with this much methamphetamine released into the street i would and i would not characterize the as this agonizing over this happened as agonizing at the carry that title of assistant united states attorney you carry a great deal of responsibility on the shoulders too and we expect bright young men like yourself and other assistance to really care about  things only and i think this follows in my mind anyways part of that discussion just because in terms of what the agents testified to and what they meant when they were testifying it was made today and it was made repeatedly in the briefs that  that the methamphetamine was not that interesting go after the methamphetamine on purpose that in fact they wanted to be out there they wanted to be sold because purpose of this enterprise was to make money and in my review of the record i i generate funds which would be coming from the sale of the methamphetamine and i i just that is unsupported by the record here i don't think that's true now you can draw various conclusions from what's in the record but as i read the record and one point  cash and he gets fifty five thousand dollars worth of cash for the precursor he's not asking for math he's asking for cash that's right around it isn't as nice as it that's that's an accurate statement the record is accurate however however that was respect to the fourth and final reversal for verse also up to the before that fourth one the law enforcement received a total of two thousand four hundred dollars from the streets so i and with that final deal that was not set up until they were aware or felt that they were close to being aware of where those locations where they searched five different locations put together fifty people to search five locations at five locations and a period of just over three days after that final  deal so the idea that this all along was meant to generate funds i don't believe there's any support for that and i think that to a certain extent there's aspersions being made here which are not supported by the record well yes there's a semantic argument over any evidence there is some evidence and it may be or may not be particularly persuasive but i do find it somewhat distressing that when they hand over the last  precursor they don't ask for math but instead they ask for fifty five thousand dollars well it's not as if they didn't ask for any math at all they actually and received ten pounds of meth on the date of the thirteenth the day that mr rally was arrested very quickly i want to point out that we been understating the level of fraud with regard to the manual not only did they not produce the manual before george carlin they actually produced a letter that falsely stated and if they actually used the word paraphrase they produced a letter to judge carl this court saying that the letter accurately cook verified it phrased the policy manual again this manual should be on the shelves of a library instead we believe it was act it's true well listen in discovery you usually count on them fighting style rather well usually i mean how often do you see a defense attorney demands a person and usually there's a rec up they knew exactly with what was going on here and not only did they supply him with ten pounds they supply him with an extra fifty five pounds triangle by fifty five pounds of federal and if there wasn't enough they need a sweet deal on this on the next round of fifty five pounds and they made no attempt to collect this back ever so this was allowed to go to the street and we as a grand jury determined by a one hundred percent vote the reason was they wanted to collect that money the second point i want to make is that i too am deeply offended by the response of the u s attorney who was more or less chiding us as the private citizens my goodness he should be on this side of the table and defending what we're doing instead of defending the illegal behavior of these any agency that is more or less outrageous as a citizen of this country