testimony that a few days after the murder anthony russo excepted congratulations that evidence allowed the jury to infer that anthony rizzo must have participated in the murder in some way if he accepted congratulations he must have done something but we now have affirmative proof of how that murder was carried out and who ordered it the proof does not contradict any of the trial evidence and it excludes if any were sent from playing any way this evidence is so important because it breaks the inference that by accepting congratulations that will stelly that anthony was i was guilty of the murder but there's also testimony about meetings before the murder about mr aris as pretty as a patient in meetings about going to war with the arena faction it's not specific of course to this particular murder but it is evidence that he was involved in the declaration of war at least in the agreement of the russo crew to participate in the war is that not the case judge lanch that absolutely is the case we're not challenging the murder conspiracy he was and was found guilty of it we're not challenging it here he served twenty four years in jail and i'm puzzled by that if he's a participant in the murder conspiracy doesn't that in itself make him a  lots of murders but there is not a separate charge of conspiracy that you're can see you're not conceding a separate charge that he's guilty of conspiracy to murder minerva in particular the evident the charges the trial was a war that they say that we know that they say that while they were key participants in the murder and i asked the court now given the entire record the court has and the juncture at which the court now must rule whether we have the right to be back in the district court i've asked the court to specifically look at r leave to file a subsequent hey b as the two thousand and thirteen petition well judge lynch we now know what both of these key witnesses said to the government specifically do you know calabro told the government that he had no information that anthony russo was involved in the murder we know that from his get a says representations to the district court about what they know calabro told her have to the panel tonight relief we sought to speak to the prosecutors in the in the eastern district sprockets evidence of anthony was as in a sense we had a face to face meeting we asked the government to please investigate are absolutely convinced that they have to do so is innocent and we said to the government you have two witnesses who testified at th we trial talk to them in the district court i submit we found out exactly what they are khadr i said and he said he had no information that anthony was so was involved in the murder procedurally we are effectively here on your motion for leave your construed motion for leave to file a successive a b s application i would say that's not that's not accurate i understand what the court is as is suggesting we suggest that there are three grounds upon which this court could exercise relief and i'm honestly suggesting that the easiest ground is to view what happened in the district court as as a separate application for success if we leave i think it's compelling calabro we had no access to who was the government's witness who clearly was the principal witness at the g only trial knew all about it if you read the summation he was intimately involved in that murder as was  knows you know that anthony was so had nothing to do with the murder he knows that that border was directed by judge ever so that was the evidence at the jail the trial he knows who participated in that murder and his evidence is entirely and consistent of what we submitted to this panel from frank sprockets sworn statement so it's all suggestive of what actually happened and specifically who ordered it because as as judge wants inconsistent with the government's theory of the trial the evidence here is it strikes me as very thin in the original trial if it but basically whirls down to here excepted congratulations for being involved in this but he could have been involved behind the scenes in talking with joseph russo there's there's no the fact that he did not specifically tell calabro to do something or did not specifically puracal to do something is not inconsistent with his approving this decision by his cousin i was suggesting that to the court that that's not what the current record actually shows it's not what he did or didn't say to it's the fact that spanked franks for arco provided evidence which is undisputed that there was a meeting on march twenty fifth to plant this afic murder and we know from the g only trial how the murder unfolded and unfolded very quickly and it is all consistent with a murder planned on the morning of march twenty fifth there is no other evidence of any murder planned or not challenging conspiracy prove but the court should but again keep the conspiracy proof is not only far to the evidence that i take it is part of your application that someone said it wasn't just that anthony rizzo was not there when this particular planning meeting went down  i thought there was evidence also that bronco was told don't tell anthony was so because he would he doesn't approve of this that wasn't strong application before the score in two thousand and th on this on this point i would suggest to her that there is because we also know from what was produced in the district court that the government has acknowledged not only that frank's cracow said in his plea in his affidavit in two thousand and thirteen but the government now corroborates that frank's provoke and try to tell the government during his proffer sessions that anthony russo wasn't involved in the murder and wasn't at the planning meeting we have that from the government in this case that is brand new and that is extraordinary for precisely the reasons the court is getting at spurlock who said in the submission to this court to a panel of this court in two thousand and thirteen that he didn't get the chance to tell the government what he knew about anthony russo the record here is the record here is clear that the government didn't want to hear what with sprocket had to know about it at the news of innocence the profit report makes the i complete should be affirmed in this court should not grant further review of russo's conviction which was entered twenty three years ago after a two month trial what should the decree of our court be in your  into to deny the russos request for the court to exercise its supervisory jurisdiction in allowing russo to continue to present his  frank's for rocco's information and that information was absolutely presented to the court in two thousand and thirteen when the pat pryor panel denied it so yes there has been some further development of that but the crux of the new evidence and when i say new i mean new in two thousand and thirteen not new here in twenty seventeen the crux is that they have a witness who now says in a spectacular fashion that  is innocent of the offense and goes with this theory that joseph russo told franks for rocco that they had to keep this murder secret from anthony russo and that anthony russo wanted  to clear and convincing evidence that no reasonable fact finder would have convicted him up there were so when taken in consideration with all the other evidence and it's important to look at what the evidence is it is not just larry massa's testimony that russo accepted congratulations larry mousa went much further than that he said that there was a meeting shortly after the march twenty fifth murders where chef anthony research used me said they'd been working on getting him they finally got to him in front of his cafe they killed him and when they as preferring to himself include anthony russo was included within that day that was larry meiosis testimony so that was not septic congratulations he described what they had been doing that they had been targeting him for a while and finally they got him a couple nights earlier and they killed someone else in the process he was satisfied with that in addition there w ample evidence presented at the trial that anthony russo and joseph russo his cousin and what actively involved in the war casting serious doubt  overall participation in the conspiracy to murder members of the arena faction is a critical part of the context of the murder and how we assess  the potency of testimony that anthony russo didn't want to participate in this particular event that's correct it absolutely is critical in evaluating the credibility of what's baracoa now says twenty some odd years later two there was evidence that there was a prior attempt approximately two weeks earlier on john minerva and that that prior attempt happened in the very vicinity of the location where he was ultimately killed the clear inference of that testimony is that they were they are going for into the faction and specifically anthony and joseph russo screw were out there looking for john minerva there was testimony that he was taught that they were targeting john in fact there was a witness at the trial testified that joseph russo in the presence of chuck of anthony russo said that they were targeting john minerva as well as others and there's nothing in the baracoa was there joseph druce who was there and then he says the two other people that are listed in the report on the same date and if you go back and look at that report which so we use is very cryptic language but if you go back and look at that report that's tommy individuals who were there at the trial the government argued that two of those individuals were joe monti and thomas joly and then there were two younger men while that one of those younger men may well have been eric cursed you know but then there was a fourth younger man as well so all all of those people eric hearst you know the fourth younger man the two shooters all had to be recruited at some point driven to the murder scene told where to go if they had to identify where it was that they were going to kill them all some had to take place that didn't happen at that one single meeting the evidence clearly shows that there were numerous at that the planning to kill minerva was long in action and absolutely consisted of more than a single meeting that and sprocket i mean spock go thought it was his job to do the killing and then he showed up when he saw these other two guys fire into the car absolutely in the notion that were quote intimately involved in the planning of the murder also doesn't make any sense because they show up maybe they're going to do the killing that day according to those information you know was prepared to do what he needs to do during the murder in fact he testified that on a prior occasion with g only he went out there looking for john minerva so he was there to do what he was going to do but they show up in lo and behold john minerva and michael number gamo have already been shot so they didn't they were not involved in every aspect of that planning and as one of your honor's pointed out during ms resnick sprees in taishan anthony russo and joseph russo were always together the testimony at the trial was overwhelming about all of the meetings and all of the different occasions during the war when anthony russo and joseph druce to work together so of course there was an opportunity for them the very best evidence that there was one meeting to plan this murder is what frank's told the government at the proffer sessions in two thousand and ten that we didn't have evidence and that the panel of this court had no evidence of the government acknowledges th said anthony russo wasn't at the meeting what meeting is he talking about he's there to try to be a witness at the g o p trial he didn't even want to be a witness at the g only trial the government needed him the government knew all about his credibility issues and the actually went down but put that aside why is it not the case that of anthony russo had approved efforts to kill minerva in the past that he has to be involved in the plan to execute this congratulations at last and at worst he did if he had already approved of the killing of minerva and then on this particular it even if he wasn't involved in the planning of this particular expedition that proved and this was a particular plan to kill a nerd or whatever this was the plan that formulated on march twenty fifth with the notion of killing him at the cafe and with joe joe russo instructing sprocket to do it all the people involved in the murder were joe jo everything together that was the conspiracy prove that was the inference that was sufficient at the trial in one thousand nine hundred four but that inference is no longer sufficient it was jo jo russa's people and the evidence of the meeting that morning was what we learned about in the district but it's not sufficient now not in the claim of of actual innocence not in this or on this record he's done his time for the conspiracy he should not spend the left rest of his life in jail for a murder he did not commit you know for the questions thank you