was fundamentally compromised by the government's failure to provide him this material impeachment information concerning the government's lead cooperating witness and whether or not the district court when they did made it highly thirty two that was charged and is the thirty two that was introduced there was no testimony at trial that that gun was involved in the conspiracy although mr hoskins had it on his person at the time of his arrest on june seventeenth of two thousand and four he was arrested in a cart full of antiques and the gun itself was wrapped in a towel and there is absolutely no evidence in the record that he used that gun during the commission of the conspiracy rather the testimony at trial from johnny holmes from was semi involved in cooperation with the governments we detective tom lewis was that when all of that's really the essence of the argument that the indictment in count three i read use that on june seventeenth mr hoskins carried being the gun in that during the commission of the drug trafficking crime and he was arrested on that day millimeter not the thirty two and well i'm not when i tried to mislead the court i did not try the case but i know that the argument that that this gun was not associated with the drug trafficking crime was presented to the jury and also presented to judgment only in the record and m the thirty two and the nine millimeter the first piece of evidence that the district court was required to have the jury find which gun was used during the commission of the crime yes my client can obtain relief because his trial counsel made that exact argument before the district quote and essentially gone awry this morning when i was trying to make that was pointed out to the court that the only evidence that the why i do not believe that is correct connor for this reason that the jury instruction to require i needed to have the jury find which kind he possessed during the commission of the drug trafficking crime yes but the only testimony that tie in a gun to the commission of the offense was johnny holmes testimony regarding of nine millimeter he by implication and that's on page thirty one of my brief and that's the transcript page forty six during the commission of the crime was the nine millimeter which was not charged in count well yes your honor and and that's why i make the alternative argument that if there is not sufficient funds if there was sufficient evidence that there at least had to have been a jury instruction that required unanimity as to what yes i believe that i case like this destiny all of those criteria the left back to the right you have here is mr hoskins found guilty of a crime that was not charged let me ask you about something else that well you know i think you have to read his current statement in context and i don't think it was an unequivocal and expansive denial of drug use what i actually said was i admit that i'm a small user of the stuff i may have smoked seven joints in the last seventeen years and you know i'm not in the drugs i'm just a bit on the business from my family and i think that quote taken in context with the fact that the seventeen year component that's really what we're trying to impeach his credibility with is this the fact that he said seventeen years  no i'm saying that the component of the bombshell the produce conviction at seventeen years old makes him unbelievable on all of that and then your point that this man wasn't in charge of the torture rather than getting a truthful testified on direct and i think it violates rule rule six or nine if the court takes the position that she did not tell the truth then i think we're truly under six o seven analysis which is impeachment by contradiction well i think what the jury may believe those you just didn't get caught for seventeen years and i think that's really the harm here is that once the drugs just leave you're always into drugs and they convicted him  of all the counts relating to the drug distribution and i think the court has what side you're on well and maybe they haven't maybe you're done and the fact that he's charged with methamphetamine the fact that he was previously convicted for cocaine distribution affectively took any argument that he's believable and threw it out the door and in  i have to question why given the facts of this case they went after the government starting traduced this information if it was such a case where there were so much evidence it was necessary they did it because in my boo it was a close case and that there was no harm here i was one of your honor and i believe i'm over it tells me to stop some ok thank you is in furtherance of the conspiracy charge not in furtherance of one of the other charges actual well you know i guess i would argue and i'm sorry i don't have case law for me i'm not prepared for this nuance or guess of the argument but i believe the conspiracy is a drug trafficking crime that can be a predicate crime for ny twenty four c and i'm criminals use that unloaded gun for the intimidation factor of it and i don't believe that there's any requirement under the law that the gun be loaded i think it is perfectly logical that you would use an unloaded gun as a threat right i would respectfully disagree with that your honor because when you consider the rest of what he said and to follow your analogy if you said i've never been married and you've been married not quite thirty nine years you certainly seventeen years and you know i'm not i'm not into the drugs he throws at the number and you're right he gets it wrong and the mere fact that he gets it wrong doesn't make him a liar but the overall context certainly line in this case and i would disagree with his assertion that i did it because it's a weak case and i did it in the heat of battle and in twenty twenty hindsight i may have let that go altogether but i didn't i did ask for that impeachment i don't believe it's legitimate impeachment i based on what mr hoskin said not to violate six or nine but the show the jury that mr haskins is trying to mislead you and this is one way he's doing it find the safe to talk to tina gibson to build the rest of the case the person who's the readiness against any gibson and i don't even know this was never a witness against mr haskins was never contemplated to be a witness against under the law that closeness to that case and that relevant information in order to overcome the hurdle to learn that person's identity without that however i did very consciously make sure that i didn't of the case and of course how could it when you're able to use that information on cross examination  told detective tom lewis that miss gibson had returned from spokane washington and the end of april two thousand and four with multiple pounds of methamphetamine and nine hundred seventy to know about the key phrase was just which would have impeached mrs gibson's testimony at the trial and that's the basis for the brady by lieschen and why mr hosty should have been given the identity of that confidential informant with regard to if i may you on a with regard to the seventeen year prior drug conviction i think it's important for the court to take a look at the record which is an excerpt of record eighty one eighty three the first part  sixteen years ago it wasn't his statement that he was not into drugs it was a statement that he had used for seventeen years which is the basis for the district courts in this case thank you or on