may please the court mr horan didn't receive a fair trial in two thousand and thirteen and he didn't receive a fair trial on remand there isn't any doubt in this case that mr warren submitted a lot of checks that nobody believed would clear the government's view of the case both here and below seems to be that this is a sufficient case of bank fraud that this independently proves bank fraud but this ignores an important intent element which is mr horan's intent to deceive the bank his knowledge that mr errington was deceiving the bank and his knowledge that mr de derrington was not acting on the bank's behalf and ford's benefit mr de warren was entitled to a fair trial on this question but he was deprived of that truck of that fair trial on that question first in two thousand and thirteen by a course of conduct by the government that tended to conceal and suppress the pleader in that supplement of its star witness in this case who was the only testifying witness who knew what the conversations were between mr harrington and mr de vore in and on remand he was deprived of a fair trial by two related procedural errors that tended to relieve the government of its burden of proof on that disputed intent element first the prosecution was permitted to bombard the jury with questions and testimony that equated bad checks with fraud and that identified the defendant's conduct as fraud second the defense was denied an instruction on apparent authority which would have required the government to disprove devorah ns reliance on barrington's authority even as the government received an instruction much touted by the government at closing that no officer could validate a form of fraud it's important your client get the instruction that he needed which is that he had to believe he was violating the law and that would cover i mean it is true that derrington didn't have the authority to authorize a fraud on the bank but it did work and believe that the jury believed that he believed that then the good faith instruction would have caused them to acquit well mr horn's defense was not that he believed bank a jury might abstract that principle from the good faith instruction even though that's about what the defendant believes about the law rather than what he believes about that factual question but i mean it's whether the defendant thought his conduct including doing whatever derrington tells them violates the law and if he thought barrington rehab authority to do that i mean like if i went in and got a loan from a bank that it turned out that guy didn't have the power to give me i my defense to pay after would be what others g gave me a loan i signed a piece of paper i walked out with ten thousand dollars thought it was all good and so the authority issue would be the question of course would be mine to not if i knew that guy was just giving me money from the bank then i'd be part of the pride if not then not and so it's a focus on me and why isn't that instruction focusing on mr de boer and good enough well perspective which of these two instructions is going to speak or directly to the question of of his reliance on a pair of authority number one a good faith instruction that says he has to believe his conduct as a legal or number two an instruction that says no bank officer can validate a fraud the second question which the government riddick second instruction which the government receives speaks more directly to the question of whether or not mr derrington was knowledge tended to present a defense to mr de vore in the government's instructions said specifically the knowledge of a bank and of a bank officer is not a defense to banks so a jury might say well yes but it but i can take this abstract good faith instruction and use that to me that mr davoren has to know he's not deceiving the bank but that but a reasonable girl a juror would probably look at the the validation of a fraud instruction as the more precise instruction that deals with that that deals with that question sentially and in terms that the defendants that the government has to disprove the decisions reliance on on the authority of a bank officer has to prove that he knew that this was not something the bank as a whole was sponsoring or that that it was accepting it that that print that's an unpublished case but it's the most precise case that the published authority would this be that the authority that defines the elements of bank fraud which says that the defendant has to have the intent to deceive and you've got that i mean you got even better than that because a lot of times you know that you know ignorance of the law is no defense allotting done here we have this actual structure  a law and if he thinks everything's cool the banks ok with this is kind of an informal loan relationship if the jury believed that they would have to acquit him well i'm in charge of it was give this to me that that would implicate the line of that is a particularly that the jurors such as this case are particularly troubling when they are combined with the prosecution's strategy of consistently bombarding the jury with questions and testimony that equate bad checks and fraud because if the jury is conditioned to think that all bad checks are fraud or that that is a lot of them anyway put together necessarily fraud that there that these are fraudulent checks irrespective of the defendant's intent and it hears that kind of seems like the judge o'connor felt like by granting the new trial or agreeing to the new trial it was kind of no harm no foul in terms of let's just have a do over on this plea agreement issue that then the forfeiture count was added did you argue to the district court that as a saying sion for the you know brady and now violations the forfeiture count should be taken away jeff make that are you somewhere in the record did you make that because you were a little have a little trouble finding where you made that precise than forfeiture because you know there was this nine hundred twenty seven argued about you can't assess monetary damages against the prosecutor but is that different from being vindictive you're saying they cannot profit problem is the pump from being vindictive in adding more charges or it those are independent arguments so it was one of them is that you know that because of the particular nature of the  i probably pay ninety thousand dollars for six months last well and on balance did he really get a more a heavier sentence it that is not that would be relevant to a question judicial and this be very relevant to a question of judicial vindictiveness but the question here is that if the government is adding charges is adding the punished as adding a potential punishment exposure and it didn't know that it was that the defendant's sentence was going to go down so the question is what would a reasonable defendant in the future who is considering making such a sensitive claim such a difficult claim of government misconduct on appeal would their suspicion that are they were concerned about vindictiveness be allayed by the recognized as persuasive in this court's precedent that combined to give rise to a very strong perception or concern about vindictiveness to an objective observer number one and in this distinguishes a lot of the government's authority is that  the additional punishment exposure followed the vacant chair of the defendant's conviction and not merely his refusal to plead this is not a plea bargaining there's not an increase in charges due to plea bargaining number two is the dish will punishment exposure was for identical conduct differ from adding additional charges it could add punishment as opposed to a forfeiture not at all the point is that that what we're trying to avoid in vindictiveness is a concern of conduct that the defendant is going to be punished for exercising his a successfully that that reasonable to fit it would be concerned about the vindictiveness for that reason the reason that as i understand it the sanctions were not assessed as that the judge felt like the harm which was you know not being able to fully examined berrington about the supplemental plea was cured by the new trial and your argument then is i appreciate it now and i'm going to look at whether you really braised it in the district court is not really because now we've got this extra thing here  prosecutor messing up just different in terms of brady versus vindictive neither one sounds too good to me if i'm a prosecutor and i think that that it gets to sort of the elephant in the room which is the the most persuasive reason that it a hypothetical defendant would be concerned by this course of events if they were considering raising a comparable claim which is the very sensitive nature of the appellate claim that was being raised this was not merely  error this was a claim that the government sponsored false testimony in in the first trial how do you respond to the fact that supposedly a new group of usa i knew a usa and not the same one took over the case that there was a new independent prosecutor that looked at the case in and thought that forfeiture had been overlooked and should be included in a different a different division but union of the same district under the same u s attorney right but the five new government lawyers take entered appearances after the show cause hearing in this case and i think it is it is not credible to say that that the the fact that in a district court suggested there might be personal sanction personal monetary liability for a line prosecutor did not change the tone is appealing the findings from the district court that have had an impact on her reputation and her career today i hope to hit all three of the main issues in the case but i want to just briefly say what i think are the most important points on each issue first there was no false testimony in the first case the problem with the argument that mr bourne's presenting it's trying to pull testimony out of the context here which was presented and the problem with the district court's findings which are not the same as what mr dorner is arguing is that it fails to recognize that there were no in fact any promises made related to sentencing leniency or moving for leniency on the brady issue yes there was a mistake th referenced in barrington's plea agreement that mr warren's counsel head and was using in the first trial so there is no brady violation and it's also was not material for reasons we discussed in the brief and finally the last major topic before come back to more detail on these issues is recklessness which is a big point the dallas morning news ran articles talking about my client acting in reckless disregard of her duties and if you run a google search that's the first thing that comes up under her name no one is defending that recklessness finding in this case and in fact if you look at the record there is no evidence to support a recklessness finding in the only evidence is that someone made an unintentional mistake and as a result this proceeding went forward but there's no evidence of intent the district court found there was no bad faith all that happened to someone made a mistake and that is not enough to have a recklessness find is at the quantum a mental state quintessentially something a district judge is better suited to determine than the three of us hundreds of miles from you from the situation your honor if we had a situation where there was competing evidence on both sides and there was assessments of credibility in going into that i'm a agree we have no competing evidence we have unequivocal testimony but an interested witness says i didn't mean to do it isn't that quintessentially the conficker you look in your eye you go well chaotic you like meant to an intentional say since but you really weren't paying sufficient attention because this is not just one page and thousands of pages it somehow didn't get photocopied this is kind of an important document to the key witness in the case so does a bad by itself support the notion that if she didn't mean to do it she was major league reckless in not doing it in your honor i would respectfully disagree first that this is an important document i'll talk with it one second but it is two pages in over ten thousand pages produced as far as this document goes though there was no intent as my client testified to to withhold it and it could not possibly have been intentionally suppressed for a couple of reasons first the plea agreement itself paragraph eight expressly says the document exists and has been filed with the court paragraph eight says not only will it be filed it's filed in every case in the district we're talking about a supplement that is the standard practice of the office that they every single case so then all the more reason why it should be like the first thing that's produced i mean this isn't like we've all been cases where there's ten thousand emails and then there's always some stray nails somebody introducer didn't find or blah blah blah this is not like that this is one of the core documents that's why don't you get the same as the other ten thousand it may have been produced in your honor first as far as to the comparing this document to the other ten thousand i will agree with you it's not the same as every other document produced saying if you produced everything there is nothing no one my client did not realize it wasn't produce mr horn's counsel has the the plea agreement is using the plea agreement never once said did you get worse the supplement i think you missed it there was nothing to call this salters attention or any one of the government's attention to that document as being missed it was simply a document that was missed but as far as its importance to it with the sealed document where it was not the supplement sealed yes honor it was it wasn't readily available to to the defense counsel and if they wanted to they had to get some sort of permission or release from the u s attorney's office or the judge or someone in your honor and that's a good point because the  torrens counsel could have asked for the document in order to get the documents someone would have had to to ask and get permission to disclose to him the fact that it didn't happen it was an oversight and as far as the importance of the may not be any additional terms this to me doesn't suggest that if nothing's produced that there necessarily was something you're suggesting that the the defense attorney has an obligation to intuit from this that there's a supplement that the prosecutor hasn't turned over i think the more correct thing is when you've asked for everything you can should be able to intuit that you've been given everything all these due diligence cases are cases where somebody produces a big warehouse of documents and the defense counsel doesn't bother to look through the documents that's not this case and you're right it wouldn't let me go back to the language of the of the plea agreement itself though first it expressly says they supplement will be filed as is it says a supplement will be filed and then continues and says there may or may not be additional terms the reason it's like that as i understand it is because the supplement is the place that if there were extra terms a particular roles or cooperation there could be extra terms that need to be under seal to protect so no i get that bit in the this doesn't suggest that there is necessarily a supplement that has terms that should be turned over in your honor i would disagree about what the language says but i want to say why this document is filed disciplines filed in every case when you have a case where you need something under seal if you will file something under seal people no wait a minute there's something else out there so you file it in every case that people might be cooperating i understand the deal about protecting cooperating witnesses from retribution and so to me the argument you just made very much supports the notion of defense counsel didn't say have some duty to go and find the seal document when it could have been a complete nothing you could have just said supplement and been filed as a blank document your honor that mr torrens counsel knew they did not have the document and they knew it existed from the document itself as far as the importance of the supplement though let's not overlook that because if you look at the supplement in this case not not the ones in the other cases as to why these documents usually need to be under seal or the supplement in this case to the plea agreement first paragraph seven says of the original plea agreement said there was camino for the charges that's what the supplement said the here the original plea agreement required derrington to testify about the offense that he's pleading guilty to which is the same conspiracy with mr durrant that's what the supplement said the supplement was not adding any material terms and so mr horn's council knew it existed had every basis to ask for it and then when you actually get to the document that was missed it did not add anything that would have changed the case or change the material terms in our reply brief we've walked through the argument the divorce is making which again i want to stress that the board's arguments on appeal are not the same as the findings judge o'connor made on the false testimony that we also have the u s attorney's office no agreeing to a new trial because of a mistake you have her own office not only judge o'connor's findings but you have her own office saying this is  bad enough situation where we can see that there should be a new trial your honor and that is part of the disagreement or the conflict that my client had with the office because there were no extra material terms but with that being said you're right the office did agree to a new trial because a document had failed it was not produced they never conceded a brady violation in fact if you read the government's response not just my client's but the government's response to judge o'connor's tentative findings they say unequivocally they said they don't believe any false testimony was present presented they don't believe there were any brady or constitutional violations what they had was an unfortunate circumstance where a document was fail to be produced discovered on appeal and instead of having a lingering issue in the case that could come up in a twenty to fifty five proceeding or somewhere else they said they thought in the best interest of the government let's just retry they never conceded in any of the points in fact i believe if you read the government's positions although they don't always agree with my client if you read the positions in the affidavits that were submitted the government in this order all the green on one thing there were no constitutional violations your honor we would ask the court to reverse the findings against miss off and  i'm going to start with forth because i know there were a lot of questions on that i wanted to clear up i understand how it first blush it could look odd and that's why i want to focus on that right now first i want to begin with judge james as question the government did this does not construe anything that the defense argued below as as asking judge o'connor to him strike forfeiture as a sanction for the alleged misconduct in fact the government believes that the defense explicitly disavowed such an argument on pages twenty four ninety through twenty four ninety one of the record and that was i believe  mr de warned sentencing and the defense said basically we're asking the court to disallow the forfeiture and i would like to point out this is a defense attorney that this would not even be a sanction against the government for misconduct the sanctions have been overruled what it would be is putting them in the position that they were in after misconduct putting the government in the position it would be in well but whatever you want to call it why not that i mean the whole  trial was to have a do over and we did have a do over we had a do over that the government benefited from so we didn't have a good go back to exactly where you are except the now you have the supplemental police agreement we go back exactly where you were  where you got this extra thing that's going to cost you twice as much as you have to pay in the restitution that seems like not putting you back where you were well we we never distinguished between if it was the government's fault that there is a new trial or the just the district courts fault or or some other external circumstances resulted in the new trial instead you just look at all of the circumstances put together and then you ask does that create a presumption and even if there is a presumption really all the government has to do and what the government did here was proffer objective reasons aside from for the addition of the camps well the objective reason is we usually do this and we just forgot which is also sort of the problem with the supplement well usually do this but and he shouldn't of that we've forgotten and so if that doesn't seem like a real compelling reason like well now that we're getting another bite at the apple which we're only getting because we screwed up the first time we found out we screwed up on something else and so we're going to fix that to the detriment of the defendant it's not an appealing argument to me what we did and it shows beyond doubt that the district court's decision was the correct one and i began by saying by just recounting a procedural history of that case in that case there was a new trial granted because the core because the government asked the court to admit into evidence and it in that in the evidence thirty pieces of evidence that it turns out were not admissible so arguably that w some error on the government's part that contributed to the new trial at in the original panel opinion president so there were two appeals in the original panel opinion the court said you know that stuff would have been  court in that case said no that's vindictive you can't do that really it says it didn't find any bad faith it just said that's not a good reason for adding it so that went up on appeal the government appealed that and the original affirmed it said yeah that's not a good reason you have to point to new evidence or some giant change circumstance that allows you to add something like a new count and that was a new count of conviction that was added and court took that case on bonk and created a comprehensive analysis for how you look at been dicked of prosecution and in doing so in emphasise one there are no fixed gauges in determining whether something is vindictive and it  away the terminology that the defense relies on here in terms of was a decision made pre or post trial what was the reason for the remain and things like that and said it created the presumption that we apply now and that was based on some older supreme court because of that the on backcourt went counter to the original panel pinion and said there was no vindictiveness here because they are the prosecutor offered a reason that was simply we wanted to get this evidence and doing it in the way that the original panel pinioned said that we could and that's why we did that i do are you arguing that there is a presumption and you've overcome that presumption are there's not even the presumption of vindictiveness she argued first there was not a presumption because of all the so you are right to look at that you know and in doing that analysis you look at the fact that we agreed to the reaming and we put in place a new prosecution team we did not create the second superseding indictment solely to account it was to clean it up because not clean it up but to make it different because it was a new prosecution team who was coming to this case with different eyes and looked at the case differently as any process i mean as prosecutors can and then we whine that we added it because it was expected office practice to do so we also did a new financial analysis because it was new prosecution team so they they looked at the evidence differently and saw that mr durrant gained a lot more from this fraud and the bank it up being you know in the end the office decided to take what i would call a very mild position on forfeiture which does count in your analysis and that is we didn't go after everything we thought that mr boring gang which is usually what we would do in this type of prosecution the analysis of the government show that he gained one point six million dollars he used one point six million dollars of the bank's funds but all we ended up asking for was ninety one thousand dollars and we committed to the court to s permission from the d o j to apply that money to his restitution so he may not end up paying anything more than he already did that is not equivalent to a new count of conviction or heightened a heightened sense of in punishment of punishment forfeiture that are in all available in terms of restitution so we can guarantee in certain ways that the victim were recoup that money that restitution judgment would not a loan guarantee i  five different reasons and we argued that to the district court of the district court to i want to point out adopted the government's arguments that was the exact words and ruling on this issue he adopted the government's arguments and fact finding in adopting our statements because certain statements like the fact that this is our expected office practice and that the new prosecutor added this because this is what is done in these cases and because of the new financial analysis those are fact findings there are ten amounts of credibility findings and this court should not overturn them there's a same argument applied to to the situation of the usa about being reckless no no your honor because we believe that like those findings you know because what we're looking at they are are do it's different because it was clearer that for example there was no materiality and they are there are no facts findings implicit in that you know i've seen cases where the government concede some sort of ear and then argues it was harmless and they don't agree to some redo they come up and they fight the good fight in front of the appellate court and some of these are rather agree just sears where prosecutors made racist remarks where they made very inappropriate closing arguments and so the fact that the that the government concedes and doesn't pursue the appeal to me is a fairly significant event given the hundreds of appeals i've seen where they could have done that and didn't we didn't i don't see it as a nothing burger yes your honor we did not words is my point you can say well you know a lot we don't think she really did anything wrong but here we are to agreeing to a new trial and as i said i have seen case after case after case where something pretty bad happen and then agree to a new trial and i mean it's not i'm not trying to jump on the government i'm saying that that's to it stands out it's not as if every time any errors made by any prosecutor the government comes and says oh let's have a new trial yes your honor i agree one of the things that distinguishes this case is the procedural history of it in terms of when the supplement was in terms of when we discovered it wasn't turned over it was on the eve of argument after briefing to close and the briefing concerned  over earlier and been able to fully brief it in this court and been able to present the argument in the way that we present it to the district court so we knew when we were made of the case of the district court would look at th and we presented our focus attention on this issue in that court and not only did he hear from the prosecutor he also heard from mr harrington that the second trial we believe after hearing that but also just an analysis of the evidence in terms of materiality not just the evidence but the other ways in which the essence of the supplement was conveyed to the jury in the first trial not of what your fact finding there he errored in making the determination there was a brady violation let me ask you this i you have said it on the the rest of the forfeiture that it's not really kind of new money because you're going to use it to pay the restitution should we know it seems to me we could solve the problem simply by modifying the judgment to say that i'm not seeing where it says and i may be missing it i'm looking kind of quickly here at the judgment but to me record page seven ninety seven seems to be two different amounts of money ninety one thousand of the government one hundred ten thousand to the victims if what you're saying is you're going to take the ninety one thousand and use it against one hundred ten then it's not a money that seems to end the debate and should we just say that the problem is a procedural one your honor we can't do that in the judgement it's not within the court's power to do that it's it's the government's and so in essence we've done that by committing to ask the department of say that you look at the collection of circumstances the context in determining whether there is a presumption of an addict in this and that fact you know i'm going back to the no harm no foul because it does seem to me no harm no foul if it's not new money if it's if it's ninety one thousand one hundred ten right then there isn't any new money but if that's not an enforceable promise and i can i don't see how i can make a decision as an appellate judge based upon a promise that you're saying i can't put in an order because i can't enforce it that seems problematic not that i don't trust you all it's just i understand your honor are you so are you viewing this in terms of the sanctions analysis at that point in terms of the no harm no foul and not the vindictiveness ok so i think one reason mr  answer that question is that ok one reason mr paine just pushing you to decide this issue under vindictiveness instead of sanctions other than the fact they didn't raise it in that way in the in the district court or on appeal and therefore it waived it is that he understands the high burden i would vindictiveness is a very high burden to i think you realize even more because it's an abuse of discretion standard on sanctions analysis that it's your very limited here on appeal in terms of being able to view lopping off or rich or as they please support and pages two hundred four twenty four hundred ninety and twenty four ninety one the defense argues that the district court should not impose a forfeiture because the government should not be in a better position as a consequence of its constitutional errors in the first trial that is precisely the same argument made in the but she didn't make it as a saying sions i mean the thing that seems to me the judge o'connor said i'm not go pose a sanction because basically we ride in the wrong and we put mr dworkin back where he would have been but then you have the problem that ninety one thousand dollars isn't back where he would have been an ls we buy into this you know offset sort of argument that we were just having that we can't rightly and that is persuasive words i think that's precisely what mr wright our lawyer below said which is saying what this would be would be putting them in the position that they were after the misconduct from n b c before the misconduct in other words the government isn't trying to avoid ending up worse than they were before the government is bettering their position with no change in the evidence in other words he said it's not a sanction because it's it's not even as bad as a sanction or sanction would be to put them in a worse position than they would have been as a consequence i want to recall that what legal doctrine would allow us to agree with you if it's not a sanction is not vindictive well i mean you could have been using the latin phrase no harm no foul it doesn't strike me as probably having a lot of precedent to it so at least in the judicial arena so tell me what is the legal theory that supports that argument if it's not sanctioned and it's not been dignus why i think it is i mean i think it is sanctions we said this is not sanctions because it's not doesn't put you in a worse position but there are there is certainly there are certainly cases where the district courts impose what they call a sanction and have the authority to impose what they call a sanction which only puts the government in the same position that they would have been absent the error so that data thirty i think does the governments or the district court's authority to impose sanctions is the is also the its authority to impose to put the government in the same position that they would have been but for their errors or misconduct that's also it it's also raised as if the process claim just the fundamental fairness that the government cannot increase the penalty that a defendant suffers of the potential penalty that a defendant suffers as a consequence of its own serious constitutional errors so what do we do with this we've promised i don't pinky promise to use the money to forward your money on the restitution we what do we do with that argument well you modify the judgment the gorgeous modify the judgment then we can argue that well the court can can can reverse judgments all the time this that there would be a a a remedy to the u s district court and so on begin with the strike everything in front of a personal money judgment of one hundred twelve dollars in restitution is the original crime but but that's a little different from their saying we want to have this for preacher because we have a bunch of so what of interim type ways of collecting this that the restitution guys don't have but will use it towards the restitution so that they're and in this case there's no one to be vacating it it would be modifying it would be saying provided however that all sums of taint as a result of this work which are awards will be used towards the restitution  saying that we can't do that and i'm asking your answer to that twenty one of six if if memory serves two hundred twenty eight u s c twenty one of six which is the which provides the this court the authority to vacate or modify judgments and agreement that includes it's agreement that one be one point eight shall apply to the defendant which is not at all in the plea agreement at all it is only in the plea agreement supplement there what about the argument that look the plea agreement which you had said the duty of the government to turn over its plea agreements that with it's the pleadings that it has with witnesses it's about impeachment information in particular deals with the government so while the defense counsel could have been a little more specific and said and mean the police up moment a reasonable defense counsel would not believe that there is anything material in the plea agreement supplement after number one the government represents to him that there is that you have everything not just all brady material we have given you everything is what the record shows is what the representation was number two there's a there's a discovery water which says old rule sixteen material or to discover borders see there's a saying about a seven you have to give me one is that because it's a blank sheet of paper is or not won or could you please confirm on that and then she would have got to kind of like you didn't cause the car wreck that you had the last chance to break or something like that so you should have i think it's a break right well i mean that you didn't run the red light did you can break is the guys running the red light you have the last clear chance at the idea so i think here the argument seems to be if you had been more or your predecessor had been more diligent by by satirist council it disavows any difference in the standard of materiality for material that is the subject of a specific request of material and that is not the subject of  specific request so even if the defendant had not asked for anything even if it had nazi vincent to brady request it would have been incumbent on the government to produce it if it produced it demonstrated facts about complete agreement which were not agreement proper and and you have to look at the long sequence of events that occurred here of government conduct that occurred here which collectively would demonstrate to a defense attorney that it's not that he doesn't need i'm thinking the government didn't just say we've given you all our brain material it said we've given you everything that the everything that we have in those circumstances i don't see how a defense attorney  could be expected to ask more specifically about i want to cover a little bit about the government's discussion of credit or and if i have a chance the chris dorn says that you you may look at the government the court may look at events that occurred since the original charge in order to determine whether or not there is actual been victimised saltsman later clarifies that this should be what it calls objective information or objective evidence since that the government's theory that it is merely correcting an oversight or is engaged in a new analysis of the of the evidence if it is cognizable evidence because it is not objective it is that is subjective evidence that is we forgot that is i looked at this and came up with a different different idea it is not an event that changes they are there the landscape of the case in the way that the event in crazed one was where this court of appeals suggested effectively that they add a charge and want to overcome the evidentiary error  the make a tour of the of the conviction but if that is cognizable evidence weighed against the other objective evidence in this case number one which is that the defendant alleged serious constitutional misconduct number t that that allegation in the in the appeal led a district court to pick that allegation up and threaten personal financial liability against an a us a it's not something the defense has ever sought in that case but it does  demonstrate that the government may have a very strong interest in this case and and there would might demonstrate to a hypothetical defendant that a government has strong interest in preventing those kinds of allegations on appeal in addition there is no new conduct alleged in the new charges merely a hiking penalty for the same conduct there is no new evidence suggested is merely new analysis of the same evidence and it is after of a control the government  away goes away with the distinction between new the new duties on after an appeal a new penalties during plea bargaining the supreme court has consistently distinguished between those two contexts and suggested that after that new ud whatever would you dress the harmful air aspect of that indeed the this was not merely a an isolated error in this case this was a core part of the government's strategy it was to consistently describe these as fraudulent checks and to elicit testimony from from witnesses agreeing with that or that or calling the defendant's conduct a fraud in that case that is either improper expert testimony about mental state or laid improper lay testimony about mental state or it effectively redefines the term fraud which is what the jury ultimately has to find in terms that do not have the mental state element which state which suggests they are  it is adequate merely to show that the that the defendant submitted bad checks in that case there is no way that the government that the jury going back to remember or recall of this evidence could recall much of the prosecution's testimony without recalling the witnesses and the prosecutor constantly describing this as fraud saying that the israelis were these were fraudulent these were fraudulent checks all of the government none of the government's authority involves situations in which there were so many questions and answers that it that improperly passed upon the defendant's mental state or provided improper commentary on the case there were there were scores of them in this case and they were implicit ised closing the government first elicited the testimony from mr derrington does illegitimate loan ever begin with a fraudulent check which not only labels the check as fraudulent but  essentially says that it is illegal and then at test at closing the first words during the rebuttal were there are two principles of banking here which establishes that it's expert testimony number one an officer can't validate a fraud number two legitimate loan begins with a fraudulent check so it is not merely that it was pervasive throughout that throughout the evidence or portion of the trial it is also that it was very heavily featured by the government at at him you think this might have gone differently had it been before another judge and put were you are i can't speculate on that but your honor i do want to start and spend a little bit of time on my rebuttal here on recklessness and why the should not to further to the recklessness finding from the district court first the judge's recklessness of finding appears in one paragraph it's on page sixteen forty one of the record recklessness though is a very high standard we've cited on page thirty of our opening brief the standard that's willful and you know wanton misconduct if it's conscious and difference it's not negligence or making a mistake i don't believe the district judge's findings acknowledge the fact that just mere negligence or making mistake is not recklessness but kind of walking through the judge himself been in a usa has a complete understanding of how this kind of thing works and understands the effect of such a finding upon a prosecutor and yet made that finding do we not give any difference at all to that your honor i would like to walk through kind of how we how we got here because this is a proceeding on remand that had gone  before she ever had a chance to speak the remained happened in june of two thousand and fourteen within less than a week a show cause order is entered by the district judge a suicide bomb today to explain why the government agreed to the then to explain why the government in ceded that false testimony was used this is the order on page one seventy seven of the record the government never conceded there was false testimony so they start off as soon as font a proceeding where the judges it is accus the government of conceding my client sponsored false testimony which was not the truth then they have a hearing on july twenty fourth and by the way recklessness only comes up in a section nine hundred twenty seven sanctions analysis it has nothing to do with the  analysis it comes up in the one nine hundred twenty seven sanctions analysis the order from one spit page one seventy seven the sue a sponsor order no mention of nine hundred twenty seven or that were have an analysis of recklessness then you get to the hearing on july twenty four which is the hearing to have my client has an opportunity to testify no mention of one thousand twenty seven or recklessness in the arguments from the court from my client instead my client takes the stand and says your honor i made a mistake it was not intentional i never intended to conceal anything no one challenger on that read the cross examination of the july twenty fourth hearing mr horn's counsel didn't try to say this was anything more than a mistake there's no attempt to go beyond that the court didn't ask any questions of the court start of the sue a sponsor what the court didn't ask any questions the first time we see the recklessness discussion is august twenty eighth when the findings are made first time recklessness is mentioned it's in the one nine hundred twenty seven analysis which the court once they disclosed the one nine hundred twenty seven analysis we had a chance to say your honor that doesn't even apply because of prosecutorial munity we're going down the wrong line but that's the first time it appears page sixteen forty one the court says the basis for the recklessness is that my client received the letters the discovery letters that mr warren's counsel mentioned that says if you've given me everything that's the entire part of the discussion and if you get a letter that says have you given me everything and you have someone who is a conscientious hard working person who thinks they have getting a letter that says have you given me everything is not telling her wait a minute you missed something that's not giving her any clue that why devor instinct that something's been missed they had the document they had the last clear chance your honor i thought that that question really does go to the heart of it we're not trying to blame divorce counsel for the situation it's some it was a mistake but they could have avoided it they could have helped out they could have pointed my client somewhere that she could have located a realized that she missed something but just missing something is not a recklessness it's their failure to break excuse her failure to run her or her running of the red light i mean the problem you know that's the problem is that no she's still a sinner on the red line so but your honor and the analogy in the question the reason why i was saying something about that is because they could have helped and done something that would have helped my client focus  have the page or the case in front of me we do even cite to a case i think actually i think it's williams versus scott but i may have it wrong where this court's acknowledge that when the defense counsel has a document sometimes it does have an obligation to correct errors if someone honestly does not realize they made a mistake it's not recklessness when you receive a letter that says have you given everything the mental state is i thought i did that's what she testified on the stand that is undisputed testimony and there's nothing that allows that to rise to the level of recklessness especially when we have a proceeding like this sue a spontaneous no advance notice that she's going to be on trial for recklessness violation until that findings made and then of course we find out that that was heading down