position the government and her had been working to both investigate and then secure the guilt of a man named loaded but the government then unexpectedly reversed course and dismissed the entire case against loading do not see his innocence but due to the actions of a confidential informant the district court erred st by refusing to review this team that evidence related to the confidential informant in camera or by ordering direct productions and i c m p nd it aired by denying miss the m p s request to withdraw from a plea agreement to a camera that seems that evidence the supreme court in all their man had to arrest a situation essentially the same as what we have here which you refer to as the change of evidence we don't understanding as to why the case was dismissed against loading and that was on the basis of inappropriate conduct on by a confidential informant and that the government has never does that might is you made or the council made a motion to reject the agreement but did not argue that at the hearing and i wonder why not would not the judge rejecting the agreement have exactly the same effect as for withdrawing the your reman and the judge would not have been back on their contract l stealing and of course if it was set back to ground zero the client might have got much more time i mean there are a lot of good grounds for giving her more than one hundred and sixty eight months are there not mess might have been understated but you're arguing my understand the sympathetic argument here but why wasn't that press as a reason to reject the agreement honor you can reject this agreement for any good reason we'd prefer to go back to ground zero we are disappointed and you can fix this by simply rejecting the agreement let's look at that they engaged in this contract sort of agreed discussion the government you know said no we want our contract but simply has  certainly the trial judge judgement thyssen this case was focused on whether or not there was a reason for her to withdraw from the plea agreement and in his papers the t rial counsel did assert other bases for a sentence below the guidelines in this case and i think that the pre sentence report also discloses numerous cases for a sentence below the guidelines including the prior efforts of missteps be in working with law enforcement local law enforcement to secure a search warrant against mr loading her name was in that which means that her identity was disclosed to load and putting her at rest and the direct results of that warrant for the federal charges in this case and if the government did say in its papers lowden was not dismissed because he was  it's what you do with this line of authority we have that when you have brady material inquiries district court judges are allowed to relock on the vouching of the u imagine i can certainly understand from your present position not really caring for that authority but it we don't want to explanation for it is it's a pretty serious slippery slope when we start saying we're going to automatically or somehow use of discretion not trust that seems that seems a little worrisome to me and it is a discretionary choice it's just a part doesn't have to accept it as you know it could have done camera but  what do i do what i do with that authority and how do i care to move for you your honor i think the government and the district court below emphasize multiple times the highly unusual nature of this particular case and part of what makes that highly unusual is the fact that the government dismissed the case against her co defendants which the government rarely dies almost never dies that fact alone which was highlighted in an alderman case the supreme court case once tainted evidence comes to light once there is a specific request for kno problematic evidence that he changes i don't want to i don't want to interrupt but i am interrupting forgive me that what you call unusual is something we are very careful about not nd guessing prosecutorial discretion is you know it's like a foundational part of liberty you know it's one of many checks that we have in the system and it really is beyond review for the most part barring something utterly outrageous and your promise is that it's unusual to drop the charge and my reaction is to say wait we shouldn't be punishing the government for dropping charges like that's it that's a healthy thing you know a criminal system your honor we have i take no no position against no problem with the fact the government dismissed charges against load and we're not questioning the government's authority were whether or not it had legitimate bases to make that decision what we're questioning is the district court's determination that it had no basis to do and in camera inspection of this known evidence i'm not just a court judge one co defendants in a trial so the specific circumstances here which are very rare as the government and the district court below repeatedly acknowledge set misty's case apart it does not that's for me that doesn't seem like a big risk him i guess the reason i say that is the conversation starts with the usa explaining what's happened usaid and says this is not brady material or just their material attorney as well as intentional mistakes so the review is not it indicates that the united states attorney in this case flatly lied the requirement for the review that such better truth i mean that's not a very flattering s sensitive material that led to the dismissal of be identical charges that my client was facing it makes sense it is appropriate under the rules of evidence and under the supreme court alderman case for the district court to take a nd look at it it doesn't mean individuals can violate brady unintentionally an alderman says that in this unique circumstance the court should execute him camera review or direct production which is actually what alderman required the other issue is that the district court improperly moved the burden here so the burden under the rules is on the government's to or that the party that is trying to withhold evidence they must present good materiality and in this case we have that basis of materiality which is what the supreme court said in alderman we know that there's this questionable evidence out there so once the threshold of materiality is made the individual attempting to withhold it under will sixteen must make good cause so good cause as to why they want to withhold that evidence and the district court instead of looking to the government to present good cause for why this material evidence shouldn't be disclosed put on to mr stampede the burden of producing compelling evidence that the government was acting improperly and again brady and saying well this is a strange one i'm utterly curious what happened but if the confidential informant you know may have had some bearing on their investigation of me it takes a leg out from under the table of an explanation for the agreement right now she can't do any cooperation which might lower the sentence what's the downside with you're just saying you know judgment ties are probably just as well for everybody that you at least look at it yourself and so it's not just the a u s a xmen you really can't understand why that would provide double the assurance to the criminal defendant about to spend one hundred and sixty eight months in jail if there was no other way around this well sure it's understandable from escapees this perspective that she would be curious about what happened however the law places the burden on the united states to determine pursed whether there is any materiality of this evidence and what's he had satisfactory assure himself that the united states had reviewed the materiality of this evidence and determined that there wasn't any riyadh lots of six circuit decisions were panels are struggling with whether something's material and even in a usa in complete good faith could make a mistake about that foremost we have the case law that defines material for us but then again there's also the department of justice policy that provides a peron or definition of what is material in this certain situation  and then after that we have training that begins from the very st day that we come up what is prosecutors where we are trained in what is material what is brave we have supervisory chain of command that reviews these decisions and we have is there a difference between what's material under sixteen and what's material under brady i mean i think the case does seem confusing to me i under rule sixteen it seems like they just tend to in some courts at least they just have to show that it could be helpful to their case i mean it's not the simple discovery rule which is very world but it's something it's something less than it would definitely show that i'm not guilty but it says something like ok this would be how quotes of the defense is that right it has under the law it has the materiality analysis has to be more than that has to be something that would change the outcome that would disclosed how do i know that i don't know exactly what it is i mean i understand the bagley standard if it's a post hoc brady analysis and it's after trial and i know what the evidence is and i know what the evidence was at trial so i have to basically ask that you know there was a reasonable probability the outcome would be different but what's the x and z materiality requirement it is whether also talked about relevant to guilt or punishment which is a little different than defense isn't it i'm not saying which way that cuts but isn't that another difference between the two it is indeed material evidence especially in this case that could it could have been material to punishment but as i might have where as i started  there i guess i was puzzled by not making an argument for rejecting the agreement that is you stood you stood on contract law and that was what judge much ice was asking about but miss stampede has a certain sympathetic argument here and head she made the argument for just rejecting the agreement would you have opposed that the same kind of rallies that well we got a good deal and tough luck or would you have said have had it will who will hit you even harder while i do agree with jet set and there are a number of items in i believe it was jets i'm sorry i i agree with the court there are a number of items in the state b p s offer that could have led to an above bottom of the guidelines that she has a prescription fraud drug related offenses i guess multiple remember correctly that's how the proceedings began but that had to check i don't want to the but i just want your answer to judge potts question maybe it's slightly counterfactual but they start with the idea  the plea agreement this doesn't make any sense anymore is that why when the government said yes go for it we have a lot of evidence and if you want to take your chances that's fine but there's some serious serious jeopardy here inform this misconduct so looking at the material left michigan ality aspect which is the burden of the united states we determine that materiality did not want hearing no more questions from the court i would simply ask that as the court has already noted the hernandez case does answer many of the questions here in this case it is still i'm curious about hernande that there you need to work for prosecutorial misconduct and i don't we're does that come from hernandez doesn't seem to cite anything for that i'm just does it come from a scream court case where that idea comes from i mean you can you can kind of see the intuition either way but where does it come from that you trust the prosecutor unless there's evidence of prosecutorial misconduct where does that come from w comes from as the court noted earlier the justice system is based on a faith in a trust in the united states that it will correctly and well apply its discretion in making these decisions where  they still have the in camera view option in it so it's not as if i think camera requires a showing of this conduct that discretion was there but you can always abuse discretion so that takes you back to mistrusts here argument yes or but for the court now to find that the district court should have conducted it in camera view it would have to find an abuse of discretion rejection of that the agreement and in this case that opportunity was provided to the united states and instead of agreeing to reject the plea agreement the government pushed back and argued argued the bar sure of factors and argue on that point but maybe the better way to put it is at the beginning of the hearing either you or another lawyer say the government really has an engaged just on whether to reject we really think the court should reject that that's the st order business well i think that it was clear that that was part of what was being at the judge had the authority to reject it just based on the role in c one c in addition to based on contract  amendment and there's no question that it was bad evidence like it was it was almost like suborning perjury or whatever it would be i mean that's not this case isn't well it is it's very similar in that it whatever this evidence was it was bad enough to dismiss the entire case against mr logan despite mr pease ability to testify and despite other corroborating information showing that mr lone was involved in this so that is so rare in and of itself that it does rise to the same level as the hernandez sees me as the alderman case and your honor we don't know what it is because the district court refused to review that evidence in camera that we're not now we're now we're treading ground was covered but i really appreciate both of your helpful priests and arguments it's a tricky case and we're going to try to find our way through it but really grateful as always for your answering our questions and for your help so thank you stephen and the case will be submitted