amster the attorney for the appellant in this matter every reviewing the briefs your honor i feel that the vast majority of my issues have been briefed on this matter i believe the only issue is neither did i it is again i haven't seen the letter and so everything i say about the letter if it's wrong i'm not trying to misrepresent i kind of like in a dark room over here and  murder and that's different and neither did i so i'm not sure what the specific language is i don't know of cross examination to make that more clear because if it's neither did i no question we've got evidence that he did that  though the one thing that i do want to address that i don't feel that i was specific enough in this in my briefs it is we have his testimony that was given at trial after he knows he's not going to have the life sentence anymore the jury might have clearly said ok his testimony suspect at this moment he's got a motive to lie but when he was originally contacted by the police at a time when he didn't know what might happen to him a statement that is incriminating against mr murdoch and that statement might have some trustworthiness attached to it because a prior time before he cuts his deal so the jury believes ok we've got the only statement step back i think the prior panel would judge trouts opinion already made the decision that yes we do have a breach here we if we have something material that that trumps the look at the opinion and i think the opinion well breached the point if it if it was necessary for the for the court when it ordered the magistrate to take a look at the letter to decide the a difference if the if the attorney had this letter would he have been able to utilize it in a way in cross examination that would have aided the jury different cross examination create a different transferred to that question mike white might my answer that is yes and the reason why is the introduction of that letter would have changed the entire chemistry and tenure of the cross examination gennaro denies or goes back and forth on the issue was he pressured but we have this hour and fifteen minutes of no tape recording which i think it's critical the letter really would have helped there it would have shown that there was the potential for pressure another words confronting the nordo with the letter what does he say i either pressured when i wrote the letter i was pressured when i was examined either answer he is a very compelling testimony to the jury and you can see from that letter if the magistrate's right that we have false ones and the truth this is the no interest pattern so not no matter what you can show that didn't that letter you have a different case and it might be one thing when you have a witness who is not too material to a trial but this was the witness and not only was this the witness this was these next and not only was  and you would have thought that last night when i reviewed everything i would have thought of that question so i'm trying to find  concept of the u s constitution and the statutory and going through the fact that the attorney client privilege is only statutory and that is not in the constitution we can then apply those u s supreme court and relevant evidence so there are a host of limitations to cross examination which don't impinge on the constitutional right to question is is one of those the attorney client privilege i'm asked you whether court they specifically stated that they were addressing a situation whether the comics kevin to whack at page seven zero two of this court court's first decision that would be three sixty five f third six ninety nine at page seven  attorney claimed the privilege for him i don't know where gennaro i saw he was in custody at the time that all these facts and circumstances were going down he did testify at the trial but prior to his testimony his attorney asserted it on his  you your honor that would be correct if that was the case however the previous court specifically stated that the district court was to examine the letter as if it was protected by attorney client privilege and then balance pal says in so many words that you know we address the situation involving the confrontation clause in the privilege where there are laws r i would argue you're on your honor i've listened to the prior oral argument in this case just yesterday before coming here the oral argument that's posted on this court's website and the court in the the first panel in this case was very interested in the contents of that letter the court had made a had made a decision or had concluded that no one had reviewed that letter so they were interested to see what was in that letter so i know but there's there's no reason to review it we i mean we can't second guess that and just say well we're not going to follow that decision because they were wrong right yes this court has to follow that because i was just in the first quarter we had to follow it and the other side had to follow it and in and line with that decision was the district court's evaluation of that letter the district court did a extreme detailed analysis of that letter and set forth the four factual assertions that i conceding that what i would say is that they said this specific issue has not been addressed by the united states supreme court however there have been instances where the united states supreme court says that other evidentiary privileges not the attorney just pick up on a previous point since there is and this goes to what this court has been discussing is that if there is no supreme court precedent on this issue this circuit has said that no supreme court president just review state courts do not misapply supreme court law because there is no such thing it was this case that and we see in so many cases i mean there is supreme court precedents you know at a certain level of generality the question is how specific that prior precedent have to be right and i think that's what we have to struggle with and the security question of you know good deprived panel already decide that issue for us and you draw case law in those areas but i would just based on my study of this case that courts do tend to hold the attorney client privilege above all other privileges because as the medium of lawyers  and you know we have to provide for that free flow of discussion between clients and their attorneys and that's why they hold those in fact there is one supreme court case that talks about that privilege just being in is i would argue in the hierarchy of privileges up there if not the top privilege but i want to go back to my fallback point that the district court did a detailed analysis of this letter so even if we talk about applying supreme court president if there was a supreme court precedent in this case they did a detailed analysis and said that based on the factual assertions in the letter they were proven to be either demonstrably demonstra false or conflicted with other evidence based on its reading of the letter the district court the magistrate judge found that there was no violation of the const confrontation clause because the latter was a court of the district court three and a half parts of that was false the only remaining part that petitioner did not commit a crime that was the issue to be decided by the jury they said that was the only thing left open in that letter claire and that even when the appellate hasn't seen the facts the appellant has seen the facts as much as i've seen the facts and those facts are the factual assertions assertions set out in the letter as deemed by the district court and this court has also apparently one member of the panel has read the letter at least ok thank you and i would  with these even if we talk about there being a supreme court president or the absence thereof and the application of the precedent that is there to the facts of this case which the district court found there was no violation of the confrontation clause that under the harmless error analysis done by the district court which was also very detail the petitioner in this case had a very vigorous cross examination of gennaro the jury would have been aware of any bias or our favorite system that was given to dinard zero in this case and that his bias was totally exposed that the value of this when he doesn't have any instructions from his gun but it wasn't addressed only take donato's attorney it was addressed in orders attorney and murdoch's attorney that's what the well let me ask the question what was the house attorney doing in the courtroom he was called in to bring the letter a contract with the prosecution to hold the whole truth and you entered into that agreement and now you've got something that disagrees with your testimony but you're going to assert that privilege so you don't have to bring in the whole truth isn't that implied in that contract when i did i don't believe there's a u s supreme court case specifically on the point i do believe that the attorney client is you this then our youth of the mind that every time that any evidence re privilege or other state law established it's going to restrict the right to cross examination and the witness is material i think a look at how majority of the witnesses yes ok i think i think you have a minor witness that's a different story when you have the witness and a snitch i think then you have a very if you've got any evidentiary privilege understate it's gone and that's what we have here of so that's my answer on that point yes and i do believe the panel did that that's why they sent it back to look at the letter otherwise we have a right right and and my whole point is the letter is the only evidence that either said that murdoch was not involved in it or that he was a liar and either one works for cross examination you confront the witness you've lied before so either way it is and i've seen the letter it helps on cross examination because this jury believes he never lied before but with the letter we know he lies before or this year and one question the