the government argued in closing that the real dispute in this case was dominion and control there were two sets of keys reportedly found one on the defendants person and the keys on the defendant's person were said to have unlocked an outdoor storage patio that the firearms and other contraband and drug evidence were found that patio is very important also because the quantity of methamphetamine when added to the quantity of meth found in the bedroom closet triggered the statutory mandatory minimum so it first blush it might seem what's what's the problem the keys on found on the defendant open the patio storage closet well there were some complicating factors because the government also emphasized that a second set of keys that was said to access that outdoor storage closet were found in a men's jacket in the master bedroom mr waldron at the time of his arrest pacificus lee denied knowledge that the keys he had clipped to his wallet access that patio this is important because he wasn't the only occupant of that apartment in fact he had only resided there for about two months his girlfriend who was a codefendant in this case and who pled guilty before trial had resided there previously this is extra important i argue because the jury acquitted mr waldron of the possession with intent to distribute heroin and there had been heroin and methamphetamine found in a pair of women's overalls in the master bedroom closet so as the government argued in closing there was a real dispute as to dominion and control let me ask you a question about the keys was was there any evidence at trial that the keys that were found on his person did not open the cabinet in the safe note the testimony is that the keys that were clipped to the defendant's wallet chain opened that patio closet ok so whether he whether he denied that he knew that or not the evidence was that they actually did open the closet in the safe that's correct and he repeatedly intreated the officers in his interview you know he said the keys that i have go to the front door and to the master bedroom door try them please try them one of the grand jurors had asked the ogden police detective whether anyone had tried to open the front and master bedroom door with the keys found on the defendant's person and that had not happened so there was a question at least going back to the grand jury there was some puzzlement about the key issue now this this evidence of him denying that he knew that his key opened the back the patio door in the safe was did that come into trial so that did not come in at trial it was part of the record though downbelow because post verdict pre sentencing in the motion for reconsideration motion for a new trial there were interviews with the defendant in transcripts of those were attached for the district court's review day and so is that good enough that it was brought up for the first time on a motion for reconsideration on the first time it wasn't and then we get to the wrinkle of when new counsel came into the case pre sentencing new counsel argued that there was ineffective assistance  trial counsel in litigating the motion for new trial because of all of these discrepancies and challenges that could have been brought to the government's evidence at the time of the trial and were not so i mean a trial here your client would have had to be the witness for that one thing that could have been brought out through the detectives that interviewed him i would think and said isn't it true that mr waldron stated x y and z ok so but as let's just go to the post trial motions in your motion for reconsideration was there an argument there or that that one of the detectives would have testified to that or was it your client propped up that argument i'm not sure i i believe that that evidence could have been brought out through the detectives who participated in the interviews no i understand that but that's not what the question was i want to know how it actually was brought up in the post trial motion in the post trial motion and i believe it was brought up that this recorded interview existed and that that could have been brought to the jury's attention and to the trial court's attention ok so then of course we have  going back to that recorded interview something that i found troubling is that in the detective's tape recorder mysteriously malfunctioned when the detectives were interviewing the girlfriend who was the and the girlfriend had made statements and mischa lease saying that everything all the drugs belonged to her everything in on the premises belonged to her the inference that can be drawn at least in the defense mind is that the inconsistent statements the girlfriend made might have given some pause to the detectives who then were intent on finding some evidence that could perhaps more conclusively link mr waldron who was on parole at the time who was arguably the subject of the investigation and if he i mean she may have said had it's mind or whatever but if he had the key and was an occupant of the same premises as and that they are to impute the possession to him as well even though someone else is arguably trying to take the rap well it might be but the fact that he did the sypher asli deny knowledge that he even had access to that patio storage closet and he i think it's fair knew that there were a team of law enforcement that were searching the whole apartment so then we get to that second set of keys found in the master bedroom closet that would have done him much good if he said no i didn't know anything had he actually possessed a second set of keys in his belongings that would have led to the same evidence and a five articulated that well are you saying that the keys that were found in the closet in the coat pocket nobody tried to unlock anything with them they just know where it was said it trial simply the government's witnesses testified that the keys were similar or were the same or appeared similar but nobody ever tested that second set of keys on the outdoor patio closet you are challenging the sufficiency of the evidence as relates to the conviction right i'm challenging the sufficiency of the evidence in terms of dominion and control of mr waldron specifically to that patio storage closet it's i'm looking at the issues that were in your brief i don't see any issue like that what do you mean the issues you  which i want to turn to now that's what it looks what your issue is a brady good leo issues so i mean if you're coming here saying that there's some basis for reversing its conviction because the evidence wasn't there that's not going to cut it so the as with me had in fact minutes before testifying it came out after trial lied to the prosecutors in saying first he said i have food poisoning do i have to come to court and testify they said yes you do then he said oh by the way i was placed on leave over the weekend for an unauthorized vehicle pursuit and the government said ok then went in had that ex parte unreported chambers conference and asked the district court's guidance if they had to disclose the  investigation into an unauthorized vehicle perso k well well in terms of the gig we owe argument what you alluded to the lie to the prosecutor i don't recall that being part of your brief as a relates to what the universe of misconduct after this ex parte conference had asked the officer i'm not questioning whether he lied to them on questioning whether you made that part of your argument to support to indicate that there was a good leo violation and i don't want to waste your time it your is it your view that you did that because i didn't see it in if you can't readily find it that's fine i don't want to eat up your time looking for it is my recollection that i did make the argument your honor  t beyond that again respecting your time beyond that and all look again maybe i missed it but beyond that is it would you agree that the only universe of period there we're talking about is what information was known and could have been used at trial that is correct and my argument is that had the government conducted their due diligence by not simply taking the sergeant at his word when he said no and no dishonesty is alleged it was just as unauthorized vehicle pursuit that they could have the government has vast resources they had an f b i investigator sitting through a trial they could have simply called the ogden police department chief who the government had sent a giggly a letter to me a few weeks before trial and said this is an ongoing request through trial i made the alternative argument that the ogden police department's failure to provide information that the sergeant who was a witness in this federal trial had been placed on leave for suspected dishonesty and that that should be imputed to the government under the government's  what's he on leave was that the nature of the leak tied to the dishonesty yes he was what is typically being investigated for dishonesty and he had signed garrity warning ok well all right well that's the the reason i ask that is there prior to trial there was not a cunt consummated report in which these allegations have been sustained that's correct the ok so we had allegations of dishonesty those could how would those allegations have been used in six a way because because the sergeant lied to the prosecutors and said he was as if that's assuming that you argue that right yes assuming that they argue that he told the prosecutors that and the allegation was not being investigated for dishonesty when in fact he had already signed that garrity acknowledgment to that effect what about the idea that it wasn't his testimony wasn't material anyway in light of the other  officers testimony i mean you couldn't even find the key that worked right he didn't find key that worked he said he had food poisoning but the government still deemed him unnecessary will i understand i asked him they called him and wanted him to testify  testimony was cumulative to other witnesses testimony well that's what the district court determined but the government emphasized the sergeant's testimony in their closing and they used they said that the fact that his cause it was s meticulously organized goes to show that the defendant was fully aware of everything that was inside his apartment aren't there other people who spoke about materialist nature of his yes there were other people who spoke of that there were also and again this was brought up in the motion for reconsideration of the new trial motion there were a number of discrepancies among the different officers testimony about basically who found what where and in the motion for reconsideration at best you get you get plain error on that right well my understanding is that counsel had sought an evidentiary hearing in order to develop the record while if you don't make an concede that point ok this is your fourth issue that you raised is the ineffective assistance of counsel and normally we say that that's got to be raised under twenty two fifty five do you agree that this record isn't sufficiently developed in the term that i agree that i do make the argument that there's enough in the face of the government's materials that was presented to the district court the grand jury testimony the conflicting reports that there is enough in the record as it now stands before this court i understand the press in about collateral challenges are you warning us to take that issue when it good morning america please the court jennifer williams assistant united states attorney for the district of utah mr waldron was convicted by a jury on multiple counts relating to firearm and drug possession this contraband was discovered by police officers in an outside storage closet and safe there in the critical evidence linking mr waldron to this contraband was the set of keys to the storage closet unsafe the police officers discovered on his person at the time of the search se call who is the subject of the instinctively a claim had nothing to do with the discovery of this set of keys on mr waters person to rankly linking him to the contraband in the closet and safe searching call was therefore not a critical government witness and fail well what about the fact that the government supposedly emphasize certain calls role in its closing argument did the prosecutor think he was a critical witness i would disagree with the use of the word emphasize the prosecution did refer to his testimony but this court has made it clear that simply there's the risk is that we said in our brave that simply referring to a witness's testimony does not render that testimony critical or material what  your take on on the question of whether the surgeon calls lives to the prosecutors or within the scope of the alleged claim here argument here well i don't believe that that claim was raised by mr waldron there's a in the statement of facts it is true that the prosecutors asked him whether the investigation involved lying he said no but there was no claim made that that was somehow related to the actual glee a claim and i'm not sure how even if it were i'm not sure how that would affect the materiality of his testimony at trial which is the issue that we dispute for purposes of this appeal we can see that the impeachment evidence was relevant and that it was suppressed well the only remaining issue were for analytical clarity i want to know what's being suppressed that's all i mean would what is the universe of stuff that is being evidence of information being suppressed is the investigation conducted by the ogden release department into this unauthorized pursuit and not what he might or might not have said to  we use in making that determination and looking our position is that because the ex parte conference claim was not made in the motion for a new trial that it's that was its point error if you i get that b one component of plain error is error and to assuming that we were going to reach the first prong the plain error we have to know what standard to apply right right  with what the district court did was conduct an ex parte proceeding ok and there are human is that doing that the act of doing that was error and the question then would be ok you said it's plain air all the the ex parte communication and whether it constituted a constitutional violation to know ok but i can do further research on that and submit it twenty a j i mean if you agree that in the novo review that the x party proceeding was in and of itself or no we wouldn't concede that i think that the case was clear that not all  parte proceedings raise constitutional concerns and i think it's the nature of the of the particular it's part of a proceeding that the court has to look at and so here there are a number of factors the fact that the ex parte proceeding this happened in the middle of a very short trial the prosecution only became aware of the that there might even be an issue concerning sergeant called once opening statement trial had already commenced and i believe it was during jur selection they also did not ask the district court for an advisory opinion all they said was it just came to our attention that is under investigation the district court asked whether the allegations involve lying and the prosecutors said we don't know we'll go after the court offered an advisory opinion and so whether it was asked or not really if the if i were the definitive i'd argue that the evil was that the proceeding took place in which the a court could have argued i mean could have offered that opinion so whether they asked were not it seems to me is not really relevant well i would frame the the answer the district court gave a little differently the district court said if it involves no allegations of it's it differs from the advice that for example in the carol kaye is where there was a space where the facts known to the prosecution were more specific so they they actually asked for the district court for an opinion this is what we know this is what and what do you think we need to do here what the prosecution knew at the time was much more uncertain if they if it turned out that it involved dishonesty and the prosecution didn't didn't turn it do you think the district court would have felt it would have told given them direction as to what they should do well i wouldn't want to speculate as to that because i if i were the prosecutor i think i would know what would happen if i didn't do it at that point which is the district or told me conditionally if it's this you do this right well so even if that's true that's not the only that's not the only inquiry into whether an expert in communication violates due process true the government does have an interest in protecting the confidentiality of its agents records especially in a case like this where they don't know they've just learned of these allegations they questions flow from that for me what would it is the implication of the fact that this proceeding actually was a brady leo proceeding in which the government could have made this decision on its own i mean other  generally no generally know you're sitting in the confines of your office do i disclose or do i not you have to get on the phone call the defendant ask him what he thinks about it now ok all right  with a yawn which is the case it was cited by if you can the the third circuit case why i may be pronouncing it correctly five and again i don't want to eat your time if you don't have it readily available or give the defendant the right to advocate that something should be produced but did you change that by or did whoever tried it below change that by going to the district court in the first instance instead of just using your judgment to make that decision so where there may not have been a right of the defendant advocate a position before you did that change once the prosecutor decided to take the issue to the district judge and ask his opinion on the issue well again i think our answer is that under the circumstances of this case given the fact the trial had already commenced that it wasn't it certainly wasn't plain error to go to the district court and make them aware that there was this potential issue which is the trial commencing have to do with anything brady is a trial right brady is a trial right the time use it is in trial so what does that have well in terms i would like to focus on the prejudiced aspect because i think that even if there was an error and even if it rises to the level of plane error the ultimate that the information was eventually disclosed to the defendant in fact it formed the basis for their new trial motion so they became aware of the potential impeachment issue they have now filed a new trial motion and so the fundamental question both with relation to the expert in communication and with the shortly after trial i mean so there was no i mean we're not you know i'm an argument that they could have somehow gone to the court and said we want to use this because they didn't even learn about it till after the trial was over no i think the court can look at for purposes of the materiality inquiry what use it would have been to defendant at trial given that at that time it was still a pending investigation and no final conclusions have been made so i think the court can look into that but no the defense did not become aware until shortly after a trial and promptly filed a new trial motion litigating the very issue that was the subject of the ex parte communication thought it was all right they didn't find out until after the trial if i heard you correctly they weren't prejudice because it was a venture will he disclose well you know they were why weren't they prejudice they couldn't use it in their trial that's a whole pro i mean there are two layers approaches here one is i could have that big catered for something i could have advocated for a result that would be disclosure when i could use it another element of prizes is i didn't get to use so why isn't it harmful who cares that it came out after trial that creates that puts them in a procedurally different posture of asking for a new trial when a verdict is been rendered holding them guilty so they happen prices haven't been well but i think for the prejudicing career the court has to look at the effect that they could have made they could have a good have put the evidence to a trial and that does dovetail with the argument that the question whether was they got it and they are now litigating the materiality of his evidence at trial what the probe the lack of prejudice is going to flow from whether or not it was material yes not a question that they've been truly got the stuff out there for there is no i'm sorry that was inquiry into whether there was a giggly a violation and i said on the materiality or not of his testimony