in the first case the government could have and should have followed through with this direct appeal but it dismissed its appeal of their case and i would submit to the court that the fact that jeopardy had not attached does not make evidence and probably the case would have been dismissed with prejudice or would have lost a jury trial but instead you agreed to dismiss with out prejudice and so why would we apply a collateral  that evidence that will suppress it was fully litigated finale the government dismissed their appeal and they didn't move to refile their appeal and the required amount  and the ruling is appealed and the appeal is dismissed so the previous ruling then stands unchallenged that the law i previous ruling is controlling it well they're conceding it because there's a bit an intermediate change in the law so we follow that little money tree well let's see what the change of the law is has made a change in the law in the lead on exception there hasn't been a change in the law about this case there hasn't been any change in the law at all there's been an application of a lot of fact in another unrelated case that has gone on appeal and is published but it's not this case in those determinations are made on a case by case basis so we have ourselves a perfect little civil procedure question right practice question and you're telling us that oh well you know you should apply this case started a year ago when i first sit down to draft my motion i did all my legal research i pursued law the case and i was going to make a law the case argument but for some reason i made a the case was a violation of procedural due process rights i'm a little unclear on whether you're making one argument based on collateral estop are involved in criminal collateral softball independent of the of the double jeopardy clause well you need to have something because the double jeopardy clause because there was no jeopardy here proved every never attached that you need something beyond double government had a plenty of opportunity to raise leon at that time right exactly and they did and they chose not to they chose not to do so they either forfeit it or they waive the right to come over here and start arguing and circuit have to change supreme court precedent so it isn't leon that's been changed it's this application in another unrelated case right what we're saying is is leon was there was nothing stop and the government from the first case from appealing that in arguing that case all the way through in arguing leon except now they're stopped from doing it because they didn't do it exactly as to changed but in terms of an application of the law that did change cricket i can't and so what does it mean what the change in the law i mean it's kind of a general expression because it does have to be something that the supreme court have come along and said we don't think leon pies anymore or is it a much more narrow situation where the legal landscape relating to this these search warrants that are being  issued out of the eastern district of virginia and whether they can be used or not tense or comes along and finally says this is the way it is so now we know why isn't that why couldn't that be change in leon then we'd have a change in the law that appellate courts have been applying leon every day since nine hundred eighty four at a case of four years ago out of the western district of oklahoma  where the district judge a part of the on good faith exception and we were able to win it because this case that no that that's not that's not and that's not good faith that's in that falls within one of the leon exception good faith exception to the exception  what's interesting is that the same attorney in main justice represented the government underactive appeal in my client's first case arrive before his brief was due to dismiss the same attorney that represented the government say whether it was argued in the dismissed of appeal but before the district who are getting lost if yes and if you look at the records on by so now you're you're wanting us to save you from your previous on the basis of but the readiness legal principle of all walk it well because you have good luck that is basically you're standing there you why don't you just say it because we were lucky and i want to record where judge cleary starts talking about the good faith exception in art a very one in the district court it was volume one page fifty five the law changed to take the defendant's argument to the extreme  fourth amendment laws ever change because the fourth amendment says what it says and we're just changing the application and we precisely what changed is judge clearly clearly held that as a matter of law leon was in a political to the play pen search warrant because it was added in media and because it never it didn't exist as judge cleary and then adopted by judge payne that they made that's the matter of law that workman changed and it's all just being appealed well and we did and we voluntarily dismissed it but it was our reasons  judgments the restatement states the exception is whether a new determination is warranted in order to take account of intervening change in the applicable legal context about the law of legal context and the comment describes the test as whether quote and intervening change in the relevant legal like the jew agree with me something but you appealed that you voluntarily dismissed your appeal yes and now you want this like superbad to roll the clock back or to this other ruling that we said in another case and want us to save you from your previous we will that's exactly if we want to do it precisely because the tenth circuit has come up with binding authority that changed the law that changed judge payne clearly ruling that the playpen warrant was somehow and the need to and as a result leon did not apply that was a legal holding there was no binding precedent suppress well i think that's where you get to the action itself when we need their jeopardy attaches or the case is otherwise dismissed like an oppenheimer case going back to the one nine hundred sixteen case that we dismissed based on statute of limitations grounds and judge holmes said that's a final decision on the merits so when there is a final decision on the merits that is when the action is over and you waited for workmen in this its hangs in the background of this case but there's another protection to the defendant there is the law of the case which they explicitly decide not to do and then there is will forty eight itself where judge phillips alluded to they could have asked that the case initially be dismissed without prejudice all or when we charged again under that doctrine it's an us versus dean or the r r they could have gone back and said there is abuse of discretion in dismissing it without prejudice as in the first case so there is protections built in to the defendants in these kind of case in other words if it had been dismissed with prejudice than you would concede you had nowhere to go yes your honor if this was dismissed with prejudice we would have nowhere to go if it worked in never came out as binding ten circuit precedent we would have no where to go it's really this unique set of facts where there was no adjudication on the merits below and there is a binding precedent that change the law not some general principle but specifically with respect to the playpen search warrant where the court in our very one said it's void of need only and does not apply and as judge egan talked about it the principle of law is the extension the application of leon and this court and courts around the country all the time make law with respect to the application of leon and the application of the fourth amendment you can't say those aren't legal decisions you're making he's been spending a lot of time on this change of law issue and it seems as if your either conceding or assuming that colonel clatter will stop all actually applies believin applies unless there's a unless jeopardy is attached so what's your position on that i mean there is good reason to believe it is tied to the double jeopardy clause your honor and although the tenth circuit is held directly one way or the other in the u s versus brown case written by judge phillips he ties collateral stoppel to the double jeopardy clause and the only case that he relies on the second circuit case i'm not going to try to pronounce the name in front of fifty law students but he it's a thin reed it's in dicta and then the evidence casey relies on has been ruled over ruled by the fifth circuit so there's really very little to go on to import that sort of sum they fifth amendment due process link to the cop collateral sample so if the court wishes i think this very easily could say  based on the tenth circuit law to the extent there is the collateral stop will only applies when jeopardy attaches are a different question on this change of law issue again ash versus once and indeed when they say collateral stop will also applies in criminal and they never they never have an exception and say oh change of law doesn't apply and it's because i think because in its core what collateral stop is about change in the law and do we apply it or not and here's what the restatement of the restatement states that the courts should assess several factors in determining whether we apply the exception proposition the notion quote that the outcome of similar legal disputes being contemporaneously determined between different parties should be a code resolved according to the same legal princip so here you have the same parties as judge philips is noted the court has already ruled you appealed to dismiss so there's this ruling standing and now you want us to say that among these parties we should flip the rule and now apply a different rule so we have a choice do we want to be uniform or do we want to try this case clearly did not have the benefit to him or if you're writing the headlines of the newspaper reporter in this case you would report the case government gets lucky they lost the case and then they won the case they lost the ruling then they won the ruling is that what you write in or would you say not had luck has nothing to do with it i would say that we're in change the law would be my headline and it's it's fortuitous in the sense of that it was too late for us or it's not i don't quite follow your honor work been changed the law he did not have the case dismissed with prejudice so he knew he in the case could be refiled so there is no unfairness to him because of the functional equivalent if you were late on your appeal if you were two days late that's why the government dismissed is the functional equivalent of dismissing with prejudice case over i very one we're asking to charge him based on the current state of the law today counsel let me ask you about her opinion because ultimately and we're reviewing the review in the district court yes that ultimately what the district court did was applied a rather general due process fairness analysis to all this and all of the technical discussion we've been having up up to now is an interesting discussion but that isn't what the district court gives ultimately landed on to make gets its decision is the way in which the district court resolved this case an appropriate we have six seconds can i finish my answer the district court obviously departed from what both parties had said i do i do think just applying the change of law exception is a cleaner simpler more consistent with ten circuit precedent like didn't witty way to approach this case but that the judge in analyzing the fundamental fairness factors found that the government didn't do anything wrong that it would be fundamentally fair to pursue the i think that was an appropriate analysis and the court applied those factors waiting at the end that it weighed in favor of the government which i think was an appropriate calculation of those factors and i should say that the defendant doesn't even in gauge with those factors so in my view he's conceding that under that analysis of the fundamental fairness the government acted appropriately so i'd ask you to affirm the district court t yes i'd like to respond to what mr gallant's regarding evans i don't believe the evans case which was a district court case in the eastern district of louisiana which is within the fifth circuit was overturned by the shower evans was decided by the eastern disco louisianan bit wary of eighty seven showery came out april of eighty seven cherry doesn't even mention evidence and when you look at the facts and showery it's so different than what we're looking at here in showery the petitioner filed a petition for writ of habeas corpus to bar the state of texas from prosecuting him for involuntary manslaughter that was allegedly