abide by an obligation that you don't understand and neither the government or the court understood the brady obligation in this case and as a result significant relevant brady information was withheld undermining confidence in the outcome of the trial the government repeatedly stated prior to trial that brady didn't incompetent impeachment material that was wrong the government repeatedly argued they were under no obligation to disclose any information related to a paid government informant why isn't because the and regardless of the fact that she was brought into the courtroom none of this information was disclosed so i was in a position where although i had the informant sitting on the stand i had no information with which to cross examine her i didn't have informant agreements i didn't have to briefing reports you know i don't reveal her mother no the only information that the government provided and they provided a day or two before the trial was a one page a list that listed payments and dates they did not provide any correlation of what the payments were for or what the dates you know what case is the pain is quite poor if you include expenses or anything they provided that one document and they also provided one document that she wrote regarding a meeting with my client they also g fax earlier that said that purported to give me her love her last name her last known address which was later found to be incorrect and then they said that she was working to get her husband benefits in a case and he got probation they didn't give me the husband's name they didn't give me the case number and they didn't give me the original charges when i asked about the deal what i really meant was this i understood that she was doing this to get a more lenient deal for her husband that is one of the reason she was she was doing  they did say that that was one of the reasons excuse me was that disclosed after i filed my notion the court ordered them to disclose information and they did disclose that the husband got probation were you prejudiced by the lateness of the disclosure i was pre extent that yes it was great and but i did get it before trial that piece but what i'm arguing is that was just one piece of what she was working for and the government didn't disclose the rest of it they didn't disclose that her husband was still in custody in idaho and i have no idea what benefits he was getting from her continued cooperation they didn't disclose that they didn't disclose until the day before trial that she was working and ten or more different cases how would this how would have improved your  is prior to trial the court ordered them to disclose all close cases should work done open cases with names redacted and any and all information is conduct had i had that information i could have done an investigation to look for a pattern and practice of misconduct because the one other case th learned that she was working on independently of the government that individuals also claiming entrapment he was saying she had exchanged sex for drugs and she told him she was working for the government and she could work for the government too and if you got her drugs she would get part of the reason why i didn't argue that entrapment in the brief is because the government stipulated before i even opened up my case to the entrapment struction that put the burden on them to prove beyond a reasonable doubt that my client wasn't predisposed and it wasn't just so it was the government's bert now the information that did come in with regard to entrapment was the fact that she was a paid government agent she had a lot of motive to fabricate testimony and there was inconsistency is an understatement she knew going in what i was going to be accusing her of and she said i've never seen your client in person until after the first deal was done and when you played the tapes and you listen to it and it was clear that she'd been meeting with my client before that and i heard just denying that she'd ever seen my client in person before when it was clear from the tapes that she had that suggested there was some impropriety and she was trying to protect yourself from it so the evidence i mean china would have been a lot stronger if it had the brady material and that i would do the research i'm not sure i read it that way to me it looks  given you a peach with the evidence and they should have given you the information you needed to see you know the witness it was a struggle to get all those things that you were entitled to should have been but the fact of the matter is there and just lied through her teeth and you prove she was lying through her teeth and the jury just didn't care if they convicted him anyway so it looks like there's no prejudice removed from the violations let me address you brought up a couple of different issues in that first i disagree with you that i got all the information the fact that i was able to elicit some of this information from the witness on the stand by no means means i got everything all i got was what she was willing to volunteer i don't know how much more is out there and part of what the judge looked at in camera contains further information that you should have gotten well in that there's two points to that what he looked at in camera i think i should have still got some of that i think did you move or did somebody preserve that so we can look at it and say yes your honor he actually reviewed the information twice in camera the first time i didn't see an envelope in the files when it was put in under seal so it might not have been brought up but it is information that's under seal in the district court the informant file the judge like that but he had looked at the file two different times looked at it a first time and that's when he made an order disclosing that she worked on four cases was paid twenty nine hundred dollars and there was nothing else in the file even though i had asked it to be preserved at that time he gave it back to the government that i get asked him you know if you looked at it and they provided him another file and it's my contention although obviously i don't have any proof that there was obviously different information in the second file because when the government disclose the information she was obviously worked on more than four cases and what the government disclosed was sh sixty eight hundred dollars and i can imagine the judge just missed a chunk of the work and i think what also happened is in the second time that they submitted it they brought in some of the stuff from idaho which wasn't in the initial file because the judge didn't have a current address showing she was in idaho the judge didn't inform you that she was an active government foreman and in fact the judge kept asking the government is she an active government informant employed by the government he kept saying no no no it wasn't until at trial after the jury was sworn in that i finally learned she was an active government informant by the case agent who sat through all of these hearings so to wait and surprise me at trial with this information was completely incorrect you know inappropriate and i think that's where some of that kind you just came in i should've had to stand there and work as hard as i did on my feet to get the information in i should have had it to prepare in advance and i think that that's where some of the problem comes in with the brady the government shouldn't get the benefit of the fact that i was forced to call a witness to bring out get any benefit it look like you did have to go through a lock that you shouldn't have to go through but the fact of the matter is we did it and what i'm having trouble with is that under brady you have to work to kill a reasonable probability that the outcome of the overwhelming evidence the jury came back with a split verdict they acquitted him of one of the counts which means they had some serious questions and keep in mind they didn't acquit him because they didn't think the sale occurred mr creel stipulated to every aspect of the case he this is a close case and when you look at the at the brady case like this when you have a close case any piece of information that might have been minimal in an overwhelming case may be what makes the difference in this case and i think you need to consider that in the context that this is an confidential informant and that last address was in las vegas last known and he knew that she was and i go yes he did the problem i have this is a kind of per se violation but  into the witness stand and said i want to question her as a hostile witness so that i can ask leading questions and the judge didn't say no never he said it's premature not at this time back because the questions you've asked your so far it wasn't apparent that you want a hostile witness drugs are always knows a lot less than the worst about these things and then it looks like you didn't ask again impropriety on her behalf and i think part of the problem isn't just that the judge abused his discretion but as soon as i asked to declare a hostile the government objected and misguided the case law they said that i had to show a proving of hostility to get her declared hostile and that is not the ninth can point to to tell you that i granted i did not ask again and i hope you can see how contentious this trial was and then the difficulties i was having to getting out the information that's part of the reason i didn't ask again but in a new trial motion when the judge was on the bench she said i looked at it again never at any point in her testimony did i find her to be a hostile witness i looked at what hostile means in the black's dictionary and she always answered your questions she was never hostile so i don't think it would've made any difference how many times i asked to declare a hostile this judge wasn't going to grant it and i like to move on briefly to the issue of the tapes the tapes that were it made it really confidential informant in my client the government admitted them without any intention of ever hauling the informant and they had argued that their statements by party opponent were not offered by the truth for the truth of the matter what she said but they never gave the limiting instruction and that the tapes were hearsay everything that she had tapes that was their first witness he called up he marched into the tapes he said nothing else he sat down then called in government agents to play the tapes and explain what the informant meant well the tapes are being played this is these are agents who knew nothing about the informant or the other than the sound of her voice and then their entire closing argument all they relied on was these tapes this hearsay evidence if you look at they actually played the tapes back to the jury they talked about the tapes and even in their brief to this court they argue that the tapes were the only evidence of predisposition so these tapes were central to their case but they were able to present them well you know times in the jury from hearing what they wanted you to sanitize them from hearing anything about the informant they wanted to play the tapes and use them against real but never say my informant is really sleazy person i wouldn't even ask you to believe my informant if it was a hundred percent corroborated and blowing away the impeachment of the informant to things i don't see anything wrong with that said that to them so as far as they know that information is in for the truth of the matter and they can use it for that so i like  take a really simple hypothetical take will you tell me a kilo of cocaine for x dollars yes i will would you like to buy a kilo of cocaine for x dollars yes we have a deal at the even without a limiting instruction and the defendant's statements would be admissions and the other statements would not be introduced for their group because they're operating in the language as an operative back offer and acceptance  empirical statements were made in the tapes that the jury would take to be true if they didn't have a limiting instruction well keep in mind the way that the government argued the tape was that they proved predisposition so they take these isolated conversations and they start talking about drugs right away anything it looks like he's a drug dealer it looks like he has a predisposition because they don't get the context around their statements they don't get to know how many times he talked to him before they don't get in ou shoes providing him sex to get him up to that point they don't get to know anything so when you take it in this particular situation you just make these conversations you're not giving the jury any context and everything that she's saying they're using against him because they're looking at the conversation in the back and forth and they get a chance to judge from that isolated conversation whether there was anything inappropriate going on so i think in the entrapment case it's a lot different to come and bring in a tape when i can explain the circumstances of the tape perhaps it was just a drug deal and the other thing is they could easily cured this problem i'm not saying they can't use the tapes i'm just saying call the informant so i have a right to cross examine her the tapes the fine just give me a chance to put them in context and don't column context when they're not because that's not what the jury seeing the jury seeing bits and pieces the government chooses rather than the entire relationship between the individuals so it looks like i'm just about out of time i'll try to reserve my twenty seconds for rebuttal thank you counsel thank you exact morning me please the court my name is justin roberts an assistant united states attorney from the district of nevada there are a number of issues presented to the court on appeal i don't intend to in las vegas without telling me which apartment so that i had to spend the week of investigative time going from apartment to apartment when you actually knew they were in idaho and that's ok your honor i don't know that the record actually bears that out what what occurred is in february first of two thousand and two pursuant to the court's order on the eve of trial the defendant was given the address last night address of the informant correct your honor and in addition she was given the payment information and the consideration given with respect to the husband that was all february first two thousand and two to suggest that d h and i know judge givens indicated that the dea agent was engaged in some  ultimately finds her and may of two thousand to late may of two thousand and two so that it may appear that the information provided in february two thousand two is false but the evidence doesn't show that that's not what's in the records he's able three months later to find out he doesn't have  able three four and a half months later to find her because at that point in time she's been reactivated and has contact with the da and idaho and therefore the da and was begun it was able to get in touch with her she was not an active informant the record there is that the d a was late two thousand and one and then and that time period february two thousand to she's not working with the d a he's not he's under no duty to have day to day contact with her so the information in february two thousand to respect my suggestion or may not have been and may have been the best information that was available at that time but if i can just address some of the items that were brought up well i still like to know why the government saw it last vegas was the last known there's no indication that they had continuing contact with this individual at that time period remember the transactions that issue an indictment took place early to mid two thousand and one there's not a lot of contact after the end of two thousand and one with this confidential  false information that the da yeah i know but you're not giving us any information in the record that shows that what you're saying is true what you're saying is a hypothetical possibility back wrecked the record like the dea agent without the identity of the apartment as for whether it's the last known address or not whether the d e a s caught she was still there or did not know that she had left or did not know that she was in idaho i'm asking you giving the apartment number if i told you to deliver some papers to me at my hotel or i wouldn't because your counsel but say i told somebody that could legitimately do it deliver some papers to make it my room at my hotel the desk isn't going to give you my room number probably if you're a stranger at i'd been unable to get my wife's room number to a hotel if i didn't give you my room number you just wouldn't find let's maybe hire detectives to go apartment number and you just give the address of a conflict your honor it may very well be that he didn't have the apartment or i honestly respectfully submit that i don't know what the d h and i had and did not have that was what was provided it was the last  cross streets of where something he had known her being at that time in february two thousand and two alternately we he she was contacted three months later ultimately she was brought by the government at trial and this court has indicated a number of occasions and the government is not calling  quote the government was not obliged to make the confidential informant available for that trial but nonetheless that the court ordered the government in may to make her to bring her to trial and she was ultimately brought to trial three months later after that last night address was provide d but if i may by continuing to address some of the issues that were brought up that counsel indicated that government counsel argued below my colleague mr daugherty argued below that the government did not  impeachment material was not brady material that's not in fact what was argued what was argued was that because the government did not intend to call this informant at trial counsel for the government argued that it was not good leo material and in the cases i would submit that the better practice and of course would have been to not argue that to provide the case and actually are not entirely clear on whether there's a distinction to be made if the government is calling the witness not calling the witnesses in the case has always come before the court in the context of a witness that the government has called here so the argument below is not a blanket argument that impeachment materials not brady material it was that the the type of witness whether the government was calling or not it was informant had and she indicated that she got up in the eve of trial which is again not the case it's the time period her being truncated it was february first two thousand to one when she got it and did she did it appears have to ask for  it on a number of occasions that she got it took away first two thousand two trial took place nearly four months later so the idea that there was some sort of sandbagging or prejudice to her in preparation for the trial is just not  the information was provided four months in advance counsel also indicated if the court ordered any and all agreements for this informant worked on any and all cases any agreements on any and all cases of this informant worked on again if not the case the court asked for the file and camera and indicated in an order that their work in case there's ongoing and because of the nature of the ongoing investigation the court deemed it not appropriate to disclose that there was not a two indicates that defendants are entitled to cross examine or for use leading questions and against a government agent but relevant to must be shown first so actually says that you're not allowed to automatically cross examined a government informant it does say if it was a government agent you can intentionally automatically cross examine a government agent but if it is an informant you have to make a showing of hostility person here police and says i think i know who robbed the bank last week i think it was my sister's boyfriend and that's just informants may not be a hostile witness at all and they need to cross examine almost turns out that find out about so much later she was very active participant in these deals and when the defendant is trying to show entrapment not they believed defense counsel's representations on behalf of her client for instance the sex allegation i mean it could get a lot different question if i might just if you say that you did have sex with an ex think didn't you she says no as opposed to the more proper question was did you ever and i'm sorry maybe that's why she needs to ask leading questions it's sort of hard to get get a person to admit to that unless you can really box and then with which she was under oath you said no  goodwin's question suggested she if a person is i had to make a business of providing the services to the government that she was providing and they fall within the agent category well i would suggest that there first needs to be a foundation or relevance foundation for it and if you can't just relevance i don't get it while you're at it there was nothing in the record i believe that you know that one of the orders of the court was that the da and the government provide any and all reports indicating that this individual engaged in sexual activities none were provided so therefore it's a it's a hypothetical circumstance that may or may not have happened there is nothing in the record even remotely would be that she needs to make no showing at least limited showing that something suggestive that may have occurred or relevancy showing or doesn't ask and the informant doesn't volunteer then that the offense counsel indicated that she was unable to cross examine the c i which is as we know is not the case tapes are brought in and she was able to cross examine the confidential informant about those tapes that that's just not an accurate statement of what happened and the court is already you know most of your argument has really addressed whether the government did anything wrong here and  we have not focused so much on prejudice act could you use a little bit of your remaining time to argue assuming even though you don't concede that the government did wrongfully prevent the defendant from obtaining information in a timely way in obtaining full information and that the defendant was wrongfully prevented from asking leading questions nevertheless there was no prejudice i realize you don't concede any of those things and i'm not asking you to brought forward she was cross examined agent priscilla was cross examined all of these things did come out at trial a lot of the issues that we're talking about are things that happened prior to trial the jury got to see all of these things by way  heard from an agent that when you're asked can you do two for me when you're eight you and your immediate response is what green that indicates and that that was evidence provided by the agents and words out of the mouth of