allegations of misconduct that mr pugh drives his subordinates have made against him the report which documented an investigation that curt in the week after the allegations surfaced exonerated mr poe draws concluded that the allegations against him were the result of a misunderstanding not deliberate wrongdoing the report corroborated mr pre draft his defense and should have been admitted a trial federal rule eight zero three eight eighty three provides that investigative reports like the one i had issue of public agencies are presumption of lee admissible unless the party of their opposing their admission demonstrates a lack of trustworthiness here the government did not even attempt to make such a showing of lack of trustworthiness a trial the report should have been admitted and its exclusion prejudice petrozza i'd like to address the government's two main arguments against or admission of the ryan report these are that inspector ryan lacked legal authority to conduct the investigation and that the report was untrustworthy because inspector ryan had it had motivational problems or lower grades first i'd like to address this issue of authority inspector ryan as a high ranking law enforcement agent in the apartment of homeland security office of inspector general had not only the authority to conduct the in the investigation inspector general act that section gives the office of the inspector general the authority the authority to conduct audits and investigations into fraud and misconduct by employees of  including other office of the inspector general employees ryan wasn't wasn't part of the actual inspection chain this should mccown your honor he was the supervisor of that office he was inspector izzard supervisor inspector is or was the agent to conducted the inspection teams so this was clearly within his bailey wick and within his liking was he wasn't part of the actual actual inspection team  is to make ours i know you know your honor he did not he was not part of the inspection team but he did conduct this investigation as part of his duty to supervise inspections and it was you know i also want to point out that the government i think protect tries to portray inspector ryan's investigation as sort of a frog something he did on its own well the fact is that the  report was placed in the files of the investigation it was signed on official d h s stationery it was placed in the files of the investigation and inspector ryan did not conduct the investigation on his own in fact the report makes clear that at least when he interviewed agent droz he was assisted by his assistant assistant deputy conferred on him by the inspector general's ak i also want to trust the government second argument on appeal and that as i say on appeal because this argument was not presented at trial which is that the report was untrustworthy that keep in mind it's the government's burden to demonstrate untrustworthiness public reports report or public investigative report it's only when the government carries its burden to show and trustworthiness that they should be excluded and that that presumption of admissibility by the way applies not only to the facts set forth in the in in the report but also to the observations and conclusions in the report which of course were important in this case and the jury should have been able to hear that but regarding trustworthiness first the government didn't even raise it at trial and second i want to address this issue that agent ryan was putting out the report as part of a cover up there is not one shred of evidence in the record that agent ryan had improper motivations or was putting this this this report out to cover up for to make himself look good or to cover up for mr pre rock the government all the government could say is we are investigating inspector ryan well the government investigates a lot of people many of whom are ultimately concluded to do not have done nothing wrong and to this day they have not indicted or otherwise taking criminal action against inspector r now they also point to the fact that it's back to ryan took the fifth when the defense subpoenaed him to testify at trial well you know there's i represent a lot of people in investigation and anybody who is sophisticated and respect to ryan certainly was is going to voyeur up find a can find counsel and counsel is going to tell them to start a fifth amendment rights unless there's some benefit to  fourteen after mr put rather his conviction the district court asked for information about the investigation into the inspector ryan and the government responded by saying your honor respectfully we don't have to provide you with that investigation or information about that investigation because of supervisors separation of powers concerns if this was an error why wasn't it just harmless error and just cumulative evidence and there i don't think it was  i think the fact that a supervisory agent in d h s s investigated this immediately after the allegations against mr prodrome as a service before the agents had time to be offered immunity or given promises that they are or you know told that they may be able to retain their jobs if they testified in a way that the government considered to be truthful before they had the opportunity to shape their stories the fact that this investigation was conducted then by senior d h s o i ji official and there was no wrongdoing concluded i think that is something that would have had a substantial impact on the jury's verdict but as a matter of and practice d h and so edgy inspectors normally did not inspect other inspectors and never write well absolutely actually your honor that that that's not correct i mean that's the whole purpose of the inspection that and the office that authority to investigate allegations of wrongdoing by any employee of the h s including their own people in the o r g office so that would be routine  unfold inspector within the office when investigate somebody in the same up they had they certainly had that authority your honor i'm not sure i would characterize it as routine but these inspections the inspection the macallan field office that these allegations grew out of was a routine inspection they occurred every year and it was basically an open book test the officers would be told here's the files we're going to look at have them ready for us to have them ready for us to investigate and that's what that was all pedraza me and then ryan conducted this investigation after those alec after those allegations to surface to agent robert izzard who was the agent responsible for conducting the mckay inspection the routine inspection of the macallan field office so at the time that there was no investigation of ryan ryan had no reason to suspect that he was going to be under investigation  i mean this this this his investigation occurred the week after the agents first made any kind of allegations against  h s o r g official in the time immediately after the allegations surface before witnesses were able to say their stories would have had a substantial impact on the verdict and that's something the jury sh it did not mention any wrongdoing on the part of what drives it but it didn't address the allegations against him it simply said that you know it talked about deficiencies in the offices procedures policies and procedures but nothing of  criminal nature but overall it was positive in its review of the d h s s i y g macallan office yet you maintain that the ryan report would have would have been significant if i do your honor because it specifically addressed the allegations of deliberate wrongdoing against agent droste the inspection report was was silent on those it didn't say and it didn't say anything about th you know your your honour's book about cumulative evidence the report was not cumulative i mean it gave it was the only evidence of inspector ryan's investigation so i do think that it would have made a difference excluded because it usurped the jury's fact finding role congress when it passed through eight zero three eight three expressly allowed juries to he conclusions of investigative reports beech aircraft reaffirmed that this court in moscow reaffirmed and said that conclusions and admissions are admissible if there is a concern about whether the hearing the conclusions admissions of the investigative agency will usurp the jury's fact or fact finding authority the jury should be instructed that it is the soul that can be cured by and star struck in the jury that it is the sole determiner of fact the sole finder of fact that's in the fifth circuit pattern jury instruction so i don't think that i think that the district court's concern that providing the jury with the ryan report would you serve their fact finding authority is is misplaced and i think mosque makes that very clear the government also argues that the report should have been excluded under rules for zero three  your honor i also think that that is that that is a red herring rule for all three doesn't apply here the court didn't make any specific findings as to either prejudice or as to the probative value of the report unlike case where judge barragan made a specific finding as to jury confusion and prejudice so i don't think rule for three applies here and mosque pacifically says that rule four zero three should not be provides and in light of its position as part of the sarbanes oxley act it is our position your honor that yates or that section fifteen one thousand only applies to activit affecting the agencies law enforcement activities and not to an agency's internal processes or inspections and without i see my time is almost completed and i say the preserve the rest of the body if you have saved your time good morning there please the court and kirby heller for the united states there are two important points i want to bring out about the circumstances of the court's ruling on the admission of mr ryan's report first this took place on the first day of trial by that time the district court was quite familiar with the ryan report it had asked for and reviewed the grand jury transcripts which  it was not just there for the government's allegation we were investing brian of wrongdoing but the court actually had the grand jury testimony that could support the government's suspicion in particular agent  it as our agent is discussed how he was shut out of this whole process and he discussed other ways in which this did not smaller the normal course of events in addition of course the district court had had a a lengthy james hearing when both agent fargus and agent izard had testified again about their interactions with ryan and of course the got the court also knew that ryan was going and also could just look at this report and see that it didn't look like any other investigative reports that were part of this case the other important point probably in stormed by the first was that this was an argument about pre admission so the court had exactly the same question that your honor had what was ryan's authority in this circumstance did he have the authority to investigate these allegations against mr pitt dry stuff and he just wanted an answer he didn't say he didn't he said you're going to have to prove it up to me and there was no response except for the response he's a higher up in the office and of course the office has the authority to do this and we don't contest that but was this a report of the office or is this some separate report and the court wanted the answer to that and that was never in the court's word proved and on that basis alone can say that the district court abused its discretion when it didn't get an answer to its fundamental foundational question it also didn't get answers to the other questions which were we have here say within the whole report practically is hearsay with that hearsay we have a little paragraph on the review of the reports of the two files those don't say very much one way or the other a long paragraph about the interview with mr petrofsky all of which would be excluded another paragraph about the interview with unnamed agents who made the allegations we don't know who those are but that would be excluded and then a simple paragraph at the end that said based on all of this i believe there was a misunderstanding that was a lot of stress before the inspection and again the dress at the time didn't say well we'll take out the hearsay within hearsay this is what will it meant none of that happened it didn't again in the courts words prove it up and the same thing as to the ultimate fact issue which was the third question the court had this  concern how are we going to deal with that for any one of those three reasons the court did not abused its discretion in not pretty admitting the exhibit which is all that was before it at the time so it's no surprise that the government didn't argue about trustworthiness because it had already prevailed on this initial on the court's initial ruling which was i'm not admitting it right now unless you tell me more and similarly the court didn't really need to go to four or three because it hadn't made a final ruling it certainly suggested that it would keep it out under rules for zero three i think its statement about what concerns me is that this is the same question the jury is ultimately going to have to reach as it also said previously not long before this that and no one certain terms i'm not trying what happened and walk this trial was about what happened in texas that's not a bad what mr ryan might have done in washington certainly if the report had come in the trial would have been what mr ryan did in washington as well as what mr petrozza did in texas so for all those reasons the district court did not abuse its discretion in keeping on this record keeping the exhibit out as to the second point about fifteen nineteen i think the meaning of fifteen nineteen is very clear this is not yates does not address the issue of what it means to say that a matter is when the jurisdiction of any department or agency  the claim only pertains to whether the inspection was a matter within the jurisdiction of the department of homeland security clearly it was the plain text of the statu clearly covers that the legislative history confirms it and i think there's really no question that the investigation of the office is a matter within the jurisdiction  general actors to us as we have below so to say that it's i think incorrect to say that the defense did not respond to the judge's questions about authority the second issue  is hearsay with and hearsay but the report did contain hearsay within hearsay that does not mean that the entire report should be excluded in fact i don't know how to say the name of this case but they cited it as mahat i think it says exactly that it's a report that it's a case that the government site so the fact that there was hearsay within hearsay when the report does not mean that the entire report is is is excluded in fact i think there's a couple ways to handle that the first way would be t hearsay and hearsay but another way might be to adopt approach under rule seventy three for expert witnesses which when the expert relies on inadmissible evidence that the jury is allowed to hear it if it if it's if it it's aid in helping the jury evaluate the expert report substantially outweighs the prejudicial value of the inadmissible evidence so the jury may have been allowed to see the hearsay without hearsay so that it could evaluate  ryan's conclusions third i want to say just one more thing about harm i think that the evidence harm is especially grave in this case because the evidence was close in fact these  agents who testified that they had engaged in this wrongdoing with mr pitt ross i did so under promises of immunity and did so with the hope that they would get their jobs back and they ultimately did give their jobs back which i think to me shows how close the evidence was here if if the conduct that is issue that is at issue is so egregious why were these agents who after they