follows that the government's conduct could be outrageous according to the corps in case i don't read just means the government's actions was fraudulent i'm sorry flagrant willful and in bad feet in regards to the brady violations of mr total there was also prejudice as phone by the district court in those motion wasn't sufficiently flagrant or willful might be characterized as grossly negligent but that it wasn't will fall in the sense required for a dismissal your honor on the order seems a bit found that it wasn't satisfied here that's a factual finding that we review only for clear and that's probably why the district court did not dismiss the and they can hope for the finding of odd breaches conduct that or the dish or court concluded that the prejudice there was already fallen was not cured but that that finding by the district court is clearly wrong the withholding and suppressing of hundreds of hours of the money p r a wire taps from from a different case more than ten years earlier yes your honor it was more than ten years ago there were hundreds of hours perspective but the court gave it an alternate remedy now once the court does that don't you have a little problem telling us that it's not sufficient ok well your honor the alternative remedy that was really related to the first five motions to dismiss that wasn't really related to the fixed motion to dismiss that mr to lolo filed or the motion to exclude the testimon because in the order denying the sixth motion to dismiss the two points being by the district court was that it was too speculative as far as the testimony or the evidence that was suppressed could be used during the first trial and the result would be different we would take issue with that because as i said before this is an informant driven second you've got me confused are we talking and the government said we're not prepared to discuss it on the record the next day at a sealed hearing this it was because we didn't disclose text messages the actual text messages  and maybe you can overcome it there's no doubt that there was misconduct that something went wrong the government didn't do but the court acknowledged all that and then the court gave a remedy you think the only remedy is dismissal but we have to look at it and how do you think the question before us is do do we decide whether dismissal is sufficient whether the only remedy you can manage is dismissed and our position your honor is that the appropriate remedy would be dismissal because you cannot turn the clock back you cannot have the suppressed evidence utilized at the first trial where there was only sanctions against the government the disclosure of misconduct due to the the only remedy hope however as an alternative if the court is inclined to find some less of gravity would be more appropriate that was the basis for our motion to exclude is good for the law but for facts we have to rely on a fact finding process so unless it's been before the district court it's hard for us to make a relationship if you didn't bring up before the district court for a decision it's hard for us to say with the discourse rest should be reversed or not or whether the district court abused his discretion i'm sorry in relation to the dismissal or are we talking about  the sealed hearing and you said we believe and i'm just saying we will leave isn't going to help us very much unless it has been before the district court and just a course made a finding yes your honor i would agree that yes there would probably need to be a final but just looking at the circumstantial evidence and what the government has done subsequent to the first drop in the disclosure of hundreds of hours of molokai wiretap should indicate that not on him would be very crucial and the weirdly we would have approached the first charge would have been different if we knew there were these hundreds of always because we wouldn't have argued that well it was just the  first trial that don't you can't make that argument because you didn't testify so even if you had the wiretaps in advance the first trial there would have been no use running it i'm sorry your honor if we knew there were these hundreds of hours we had a chance to look at them we of your own i noticed that my time is up next we'll come back for a minute i'm a little yes of course i'll give you a chance to respond to the government let me ask one question if you would mind i always look back to how you set up in your brief what the issue is before us and you have before us the district court heard in denying the motion to exclude the witnesses testimony and  recordings and then it says and should have been disclosed before the first trial rather than insufficient time for the second trial so the issue before us is that they were late  were late in giving you the information is that the issue were deciding your honor the issue in regards to the motion to exclude the issue is whether this should have been prevented because of the outrageous conduct well what i'm trying to do this is see what we have to decide and as our rules require it poland has to state what the issue is that is before us so that then we can look and see if the briefs substantiates that and the issue before us if i understand it is that that they were tardy in giving you information and therefore there should have been a dismiss al of it of the case against your client that's what your your blue brief says now do when a district court makes that decision what is our standard  dismissal based upon the supervisory policies where there would be substantial prejudice and no other remedy or lesser remedy would be available yes your honor it would be a piece of discretion ok thank you thank you thank you sir from the government out essentially the exclusion motion was derivative of the six motion to dismiss the motion to dismiss based on the wiretap recordings and i asked the district court well if you're not going to dismiss what you consider this other  remedy it's not really a true evidentiary motion and the district court in ruling on it properly treated it in fact as an evidentiary motion it said well you're asking me to exclude the testimony of mal p i from the second trial and recorded conversations with the defendant from two thousand and ten and two thousand and eleven entirely different from the wiretap recordings and the district court said well listen these were admitted at the first trial without malice as a sponsoring witness no challenge about evidentiary ruling and to the extent the argument is a prejudice based one well the defendant has had now these wiretap recordings from two thousand and one and two thousand and two for at least four months at this point so really there's no prejudice as to the should be remedied as to the second trial now this is the other core question here is is really whether the district court was correct in finding that the disclosure of the two thousand and one and two thousand thing the standard here is very very high we're not talking about the supervisory powers standard that was that the defendant talks about for the first five which looks at the flagrant see if the government conduct  possibility of substantial prejudice and alternative remedies now i just want to be clear there were a lot of mistakes that the government made in this case and there were a lot of discovery errors and this is a panel of this court has looked at that and looked at the district cour t handling of that and i don't want to say blessed because that's not certainly not not an accurate description but is certainly would but but but found alternately that the district court's careful imposition of an array of sanctions cured the prejudice and served as a appropriate alternative set of remedies for in response to the government's misconduct was with respect to the malak p i two thousand and one and two thousand and two recordings the argument as i understand it is based on the possibility that the government had a sort of a scheme to hide that it knew about those recordings during the first trial so as to avoid having the already admitted two thousand and ten and two thousand and eleven conversations between the defendant and now a p i excluded now as judge wallace pointed out there's simply nothing in the record to bear that out and in fact the reason for the belated disclosure of those as the government pointed out in both the hearing between the two trials as well as in its response to the exclusion motion was that after the discovery debacle of the first trial the government  anything out there that we haven't disclosed already that we absolutely have to make sure that we disclose recalled those wiretap recordings from two thousand and one two thousand and two didn't believe that it had a discovery obligation thought that this was cumulative to at the table nair who was involved in obtaining the wiretap back in two thousand and one two thousand and two so your suggestion somehow that this just like oh all of a sudden we remembered is not to be believed or my getting the you're correct my colleague here star so so minor why did you just make the argument that you did that because it seems to me or at least i mean look the problem i think the government has here is that every explanation you try to come forward with is just going to be met with a lot of skepticism so early so why wouldn't we in light of everything that happened before why wouldn't we assume the worst basically especially given that your colleague was there and was involved certainly knew about those wiretaps you just presented an argument is that oh well you know we forgot all about it but we redouble our efforts and look what turned up and i guess i'm just i'm a little skeptical of that presentation and i don't i don't mean to be flippant about it at all i think that in the context of the trial with all of the other discovery problems going on focused primarily on john tie but many others that that was something that and this is all outside of the record but i've certainly talks to my co counsel here and asked the very question your honor asked and i reflected that in the government's responses it was precisely that we have tried we the government have tried to catch anything that we have dropped i am not certainly arguing that the government wasn't aware of it as you correctly pointed out counsel was involved with that two thousand and one and two thousand and two investigation and i agree as we say in our prefer it would have been the better practice to turn it over before the first trial there's no we're not we're not standing up here saying that it was correct of us  to have done that but ultimately that in our view was not a good we overlay ssion because it was not material largely for the reason that i didn't testify at trial number one you could not have been impeached as to that there was a lot of other impeachment information out there as to how if you even if you did testify that was the basis for the cumulative argument but really the more important one is that in the absence of his testimony there is nothing there's no way in which those wiretap two thousand the person's name i'm not going to pronounce but you know it would have revealed this other stuff that we could have put to good use and i take it your position is that no that can't be true because the wire to actually do something totally different is not the reason no not precisely the two parts  the answer one is there was already a lot of mallett p i two thousand and one two thousand and two impeachment available to the defendants and it is telling that in no point in this litigation either below or on appeal the defendant has pointed to particular information from the wire taps and said suggest that they would have been used in round one because they were not used in round two i think that's very telling evidence that there the idea that some alternative use of them would have played out much differently well in fact we have sort of a controlled experiment where they did not play out any differently but we've got a different set of facts and we would have had had something happened in a different way so you make the argument and i'm not suggesting it's anything improper about making it but it's pretty hard to go back and ring the bell we've had a trial then we had t violate the universal sense of justice that's the specific question as to the ballot p r i recordings now again i'm not appeared to defend how the government carried out its discovery obligations we made a lot of mistakes in this case but the defendant has not pointed to a particular case that says this type of a discovery error it satisfies that high standard and i also don't want to leave the impression that the government has sort of washed its hands and walked away from this case in the aftermath of the case we privacy act considerations but when he left the department o p are then concluded its investigation was no longer a part of the government and it did not have a reach over him to reach a conclusion about well i'm not out of time but just make a comment last question or maybe it's a question i guess what you'll appreciate from our standpoint is somewhat frustrating or unsatisfying about this case is that because the district court didn't carry over the sanctions it imposed from the first trial to the second trial i mean what's frustrating here is that what we're left with is basically that the government i won't say got caught because i'm not going to say that any of this was deliberate but basically serious breaches occurred they come to light and then basically because there's a retrial there's no there's no real penalty and i guess that's maybe that was within the judge's discretion to have to make that call but you have to understand how frustrating that is from our standpoint that whenever the government and when it doesn't come to light the government gets away with it when it does come to light and it's like oh well you know no no no ultimate sanctions imposed here and that's part of the reason why perhaps we keep seeing problems like this occur over and over and over again may i briefly respond i'm going out of time so yeah i think that's absolutely a fair ten different defendants and walked away with two convictions now it's in this is not a boo government but we only go to trial when we in fact only indict individuals when we believe we have evidence that establishes beyond a reasonable doubt that those individuals have committed the crimes with which they have been can indict and charge now because of the government's poor handling we walk out with twenty percent with two of the century that the ten defendants therefore acquittals in trial number one there are  here doesn't deserve a pass but ultimately this is not a case that the government walks away from washing his hands have been treated as a as a victory ok all right i want to ask you one other question i'm not sure i should  investigation is there some reason why we need to postpone our decision on what we have before us if your honor is referring to the letter that i submitted to the court about a week ago you know there is no  postpone in the backdrop of this case with all of the considerations about disclosure and government misconduct i felt it was appropriate to disclose the fact of an investigation of a case agent actually that that it doesn't involve we can go and make a decision on this case that's right i thank you very much let's give counsel a minute for about honor because there was a real trial the government had a chance to do a do over and it's shown you know during his second trial he was convicted because you're correct all the sanctions that happened in the first trial were not known to the jury in the second trial so they had a chance to do a do over he did it a lot better but the one ended up would only one conviction sink in with the first trial the only got one conviction and as the chaplain in court mentioned and the ugly large district court the government should only have one chance they should do it right and as the ocean descent mentioned there was an epidemic of brady violations abroad in the land and the district court judge trial our first position is that dismissal secondly if the court is not inclined to do it unfortunately we would have to do a third trial but it would have to be with the exclusion of the eye testimony and exhibits because that evidence based upon the jury notes in the first and second trial were crucial and if you're going to fashion a remedy so that one has been wave so we only have before us just setting aside the entire date men because of misconduct i'm not really sure if that's the case because in our appeal you know we did ask for the alternate forms of release and we did appeal those orders that we are contesting so it's only the form of relief that would be