did states versus matthew good morning your honour's my name is walter mack and i represent defendant appellant matthew davis my request or what i'm seeking is a rematch and to the district court to permit me to demonstrate the bases for our new trial motion as judge pooler you are aware because you sat on the first panel on the appeal that was denied the the evidence in this case was characterized not only by the district court judge but also by this panel of these are thin or weak it depends entirely on the theory which actually the district court rejected at sentence that my client is an in force or of a drug trafficking organization this testimony which was made by mr paris in a property seven months after the trial is government as the mason was that the reason that mr davis was present was as a an enforcer a violent enforcer and the mr power assist testimony which there was aptly no indication of prior to the november testimony was that he was there as a friend of the family he was an individual who acted as a statesman he was not there in any way have been in force or for anyone and basically if if if in fact he was as the government claimed and which is really the only basis for the enforcer theory that he was a member of that conspiracy the only basis is this meeting which is directly contradicted by paris in his test the morning before judge buchwald in november seven months a day after the trial and if you go through the thirty five hundred material what i realized the district court considers our application to be merit was no there there and but it is not even clear whether or not the district court went through the thirty five hundred material when you go through the thirty five hundred material approximately seventy percent of it is in fact delete d or rejected i asked if only to get started was to take a look and see if there is anything in that thirty five hundred material that would prestigious or predict the testimony of powers in the that argument i did not try the case but the point is the only the only basis and your honor actually asked me this question when i was here last what conspiracy are we talking about the only basis that we should have known we can really view this as new ad that ends and the argument that we hear from the government and i'd like you to respond to is that the thirty five hundred material make you aware that  there was this witness to the extent that the material was redacted there was never an application for him to see in an redacted version or an application to interview or somehow speak to paris so what's your response to that as it's argued to show that this is not new applicants my response to that your honor is that if you're a defense lawyer in the middle or shortly for this this material was pretty i think two weeks before the trial right made not believe of trial and two weeks before i understand that your honor and and the the the question on to you look at that you realize he's an accomplice they talk about all kinds of other sort of events that he might know about that bear no relation here we don't know what's in the redacted version the point is how can how can my client know or his defense lawyers know that somewhere within there there is the exact congruity there's nothing in the thirty  five hundred material that would encourage a defense lawyer to ask for it all negative it is something where you you're not one are you going to be able to see that person interviewing of a government accomplice of it start with the fact that there was no request lucy is in force or is in your company and you know this is a person that you should be afraid of them whatsoever do you sit right behind him do you act in a way that that the actual eavesdropping credibility you were certainly assaulted and questionable is actually saying hey i've come to thank you for coming here out you know he's a representative of the family he's an end of it which is exactly what davis said and has always said n trial i understand that but that stands that he was not in force or the judge judge force found he was not an enforcer and least in her sensitive situation he's never found with a gun any drugs anything of that nature and in fact the at the as the evidence demonstrates port paris that holds him out as the person who cooled everybody down got things straightened out he was a statesman he was an individual who acted exactly as a family member would that was not disclosed in any way in the thirty five hundred material that you had no reason to call him and so it i would be terrified to call him as a witness based upon the thirty five hundred material this is a typical government cooperator accomplice type person who is i would be terrified to call him and in fact that was the decision why he wasn't called it wasn't interviewed and believe being finding getting a defense lawyer or getting the jobs to rule that you have a right to interview someone and you're in the middle of trial you're not you're not going to be seeking that information based on the thirty five hundred material that was as close to government also archy's and i'd like to know your view on this  cannot show that this new evidence issac sculpture turi because it's only suggested the witness was not involved in most of the inculpatory events of two thousand and ten and the government argues  implicates rather than ex co pate status in subsequent violence what's your response to that i don't understand it your honor because first of all he will if not you'll have rebuttal and i assume they'll talk about it in their in their argument but i just wanted to give you an opportunity to tell us what you thought i would like to respond to the this witness our first of all in two thousand and thirteen he doesn't even know my client's last name it's matt meeting in two thousand well he the point being he's not there as in the fourth of all their family members there that have nothing to do they're not coconspirators learn not part of it and second of all he's not that day which has never paris testified to before judge block wall should have been available and present in the for the defense should have been in the thirty five hundred material and under those circumstances we don't know what's in the thirty five hundred material the you cannot tell from judge forced opinion whether she would view the unproductive version or not we ask she's saying hey we're just fishing and what have you i'm suggesting that at least i should be able to under a protective order or what have you is determined what was in the thirty five hundred year and anybody who reads it i i challenge anyone to say that what in fact powers testified in november before judge buchwald there  please the court my name is jessica lonergan i represent the united states here on appeal and i represented the united states below in front of the district court the testimony of robert paris is one not to it's not inconsistent with the testimony at davis's trial three as another panel of this court has already found there was ample other evidence to support his conviction separate and apart from the meeting that is the focus of this appeal and that testimony and fourth after the government informed the defendant that paris had provided information to the government the defendant did nothing to pursue calling paris's a witness now if i may expand on each of these points briefly first there's only one statement in paris's testimony at the later trial that could even potentially be viewed as  and that statement is matt is a friend of the family but he does not say and he did not testify that matt was only there as a friend of the family and it is possible and we submit what happened here as is clear from chart is paris was asked to list who he who was a member of the conspiracy those are the people he listed i think he was not the thirty five hundred material and in fact  paris his testimony later shows that he was not very involved with davis and that's actually to be expected roger keyes drug organization was a huge sprawling drug organization and paris and davis were really portions of they were really members of different subsets of this drug organization they overlapped briefly which is what is clear in the testimony on the thirty five hundred material but it's not clear it's not surprising that when asked to initially l we had from paris to defense counsel we also thought that he would provide every statement that paris made about davis in those meetings with the government every single one was provided to defense counsel well in advance of trial and in addition to this statement that he made that paris made at the later trial that matt was there as a friend of the family that had never been said to the government prior if it had we would have turned it over the same way that we turned over every other statement isn't that the definition of new evidence no your honor because if you were not because again this not inconsistent with what paris is saying which had said before which is that davis was there he was afraid of davis but davis can also be there as a friend of the family he can and was both and this is why it's not new evidence because the defense had the fact that paris was providing information to the government they had the information that paris had provided about that meeting and so for those reasons it's not ne discovered so you just said that this was the first time he said davis was there was a friend of the family and you said if you knew it in advance you would have turned it over isn't that the very definition of new evidence that would have been brady material that you would have turned over your honor we think it's not new evidence because it's not inconsistent with everything else that defense counsel that paris was saying but even if the court were to find that it was new evidence this fails the motion for a new trial fails on all of the other four prongs that the defendant is required to meet in particular this evidence was solely sought to be introduced as impeachment evidence to impeach thomas but again it's not inconsistent with what thomas was saying about that meeting and the most important porton portion of that meeting is the portion that paris everyone agree even defense counsel agrees paris was not present for that's the statement when davis says that he threatens to kill paris and that is what the government was really arguing what's important about that meeting and nothing about paris a statement is inconsistent and and with that testimony in addition the thirty five hundred produced in advance of trial i didn't know that paris said that he was afraid of davis that he considered davis to that he had heard that davis was the gun man and those things also are entirely consistent with what the testimony was at trial and addition as this court has previously found with respect to even if this meeting were to have somehow excluded from the government's case they were ample other evidence of the defendant's participation in the drug conspiracy at issue that evidence included testimony that the defendant was given two hundred grams of crack to sell a two thousand and ten testimony that the defendant stored kilograms of crack at his home in two thousand and ten paris would have nothing to say about those issues because paris was in thousand and ten there was testimony from thomas about text messages using davis's name as a threat to sell drugs faster there was testimony about the defend his participation in the two thousand and ten drug related murder of terry harrison and we know that the jury hung on that count but that testimony was properly before the jury there was also testimony from the defendant himself about the defendant's own statements showing a substantial knowledge of the inner workings of the drug conspiracy so all of that also shows that this that this statement of paris says at the later trial was not material because there was so much there was substantial there was other evidence on which to sustain the conviction against davis and finally in an abundance of caution the government did produce paris's thirty five hundred to the defendant with paris his full name and his nickname and the substance of all of his statements about the defendant almost three weeks before trial the defendant may no efforts to investigate further or call paris as a witness and if it is the defendant's contention that he was soley there as a friend of the family and that paris would be able to say that then that was that's within the defendant's own knowledge that there was a witness who could corroborate the defendant's account of what he was doing at that meeting at the john adams houses and so for all of those reasons we think that the defendant did not meet the high burden the extraordinary high burden to show that a new trial was warranted and that this court should not find that judge  forus abused her discretion in rejecting the motion i also want to correct one thing which is that in judge for order she did in fact say that she had reviewed the thirty five hundred material and that she considered that in denying the motion for a new trial so if the court has no further questions thank you it's a mac you have a minute for rebuttal it was the first time the government has ever conceded that in fact there there was if there had been some disclosure and again i don't see how you could bear for drywall and not ask if you're relying on a specific meeting as indicative as to get a whole answer if he was there as are in the appendix as far as i'm concerned whether the i've never seen the full version one way or other maybe the court did if so i mean i all i'd say it's ambiguous and from my point of view i can't be certain whether to review what was produced which is in the courthouse in the appendix or not and i'm just not willing to presume he looked at it i mean if you can't tell from the from the opinion one way or the other so i'm suggesting this is if in fact there is an argument whether that he was there for reasons other than and horsemen first of all if he's force or what conspiracy are we talking about the conspiracy that at one time the government just alluded to was a conspiracy involving pod being the provider and in fact or rather you asked that question of the last time is that what conspiracy are we talking about and now we have some huge overarching conspiracy one way or the other in which my  supposed to be in force or and and basically here is a witness newly discovered to us that no defense lawyer is going to call with with all these allegations of bob murders and things of that nature which he has no knowledge identity and his role in the scheme has been disclosed to you moreover much of what you're talking about is information that your client would know too and so the ability of this new witness or this witness to corroborate what your client is telling him is something your client would know i understood your earlier argument about how you wouldn't put him on because you saw there were too many risks but i'm not sure that's that fits newly discovered evidence here me this is a witness who was known to you and his knowledge of what your client's role was would be kno your client when i say you and your predecessor yeah so help me out as to its to how even if the particular helpfulness of his testimony was only eviden this is your argument the government only evident when you learned that he was going to say that they were he was there in a family capacity how how any of that is new when you consider you knew the witness your client  his role was and you put it together respond please yes if one is there as a defense lawyer there is no possible way you could think if the government's made your point as it was as i cited in my last time here on page eighty nine hundred eighty no one is that this meeting is proof that he's been in force you you could not comprehend that he would that the government would not ask that witness mr powers why what was the reason that matt davis was there and so when you scour the thirty five hundred and find absolutely nothing which have any implication you're sitting there and you know all these are cooperating no  you know there's a witness there who was there who if that was the truth would per presumably be able to corroborate it you get a bunch of redacted thirty five hundred material would seem to me the first thing you do is apply to the court for you're looking at a complex witnesses thirty five hundred well he's not the government's witness at their trial i mean they're not yet are identifying him as a human to wit that we're not putting him on because he's human that that's what the defense lawyers were told they expected him to know so when you're sitting there in the midst of krylon you're saying this guy first of all there's nothing in the thirty five hundred which accomplice and there's nothing in the thirty five hundred i don't care how confident you are as a defense lawyer listening to your client you're going to take the risk of calling that arson so there's no and i'm not saying that it's that there were intermediate steps that might have  resulted in you learning this material that you didn't take that's the problem not that you didn't call him but that you took no steps to learn what he might know well all i can say your honor under the circumstances you're in the middle of trial this is you you're working extremely hard you're here that the government's not putting on a government witness they'd be listed on their government witness list because his testimony would be him live there's not a single word in the thirty five un opposing counsel i'm conceded you wouldn't have found the sentence that he was a friend of the family because he said that at trial and that was the first time the government heard it they said your honor i'm not going to challenge i don't know what's in the reactor thirty five hundred i'm not suggesting that the government in this state heard viable but i cited too many interviews with agents on both sides and basically be a follow up to you i don't see how you could possibly  e that witness for this trial the one that mr davis is in and not ask the question hey why i was mad dave was there why does he have this meeting it's so important to our proof that he isn't in force