for as many years as i have been representing defendants in this district your honor when when an individual comes in to proffer at the end of that first session the u s attorney's office invokes a prior president and what they like to say is we'd like to continue to talk to you we'd like to trust but we also want to verify it is a standard comment that's made in almost every case in this case your honour's agent cunningham misplaced trust in science stafford and his unwillingness to actually verify information they could have been exculpatory to mr claus is a due process violation under brady versus maryland which requires a dismissal of the case and at the very least a new trial in this case your honor well in advance of trial defendant requested discovery from the government and requested the contents of the telephone of mr after it was requested because the belief was there would be evidence in there which would be exculpatory to mr close to speak did you not get some content we receive some content much later yes your honor it was much later was that before trial or it was just just prior to trial and it was a it was not the evidence that was completely asked for it doesn't appear to be as much information as mr efforts seem to suggest was available she had talked about that there were text messages back and forth between the original owner of the weapon phone that she lost this is the phone that she says she lost yes she said she lost at the airport and what can the agent do other than initiate a search for which was known and and do those things were a cloud that i do not understand that resulted in recovery of some material what else can be done in iran or what were the agent failed was not once it was lost it was beef well before it was lost because when we asked the court to have only a period is there between when you were asking when it was lost it was you were asked after was lost right but i'm talking about your honor from the time in which the agent first realized there was evidence on their phone books of your argument is that because she used the phone in the course of the criminal activity they should have made a duplicat its content isn't that correct of your argument exactly right now the trial judge concluded that there wasn't bad faith in failing to do that that you couldn't say with argument in iran without a request you're saying they were up watched make you run or it was clear in the in the testimony of agent cunning him that every other individual i think there were six were arrested in this case they made the seize their their phones and the eagle obligation was there that's the question so you are you saying that there was no past in that in this particular case there was past practice legal obligations there judges not the legal obligation i'm asking the court to consider what i'm asking to consider whether there was bad faith in not doing it so the point is you put together all this evidence it was done in every other situation involving this arrest but not this particular individual we have a situation where the agent shortly after the arrest looks over the shoulder of the individual and sees that there may be information in there text messages between her and the individual from whom the weapons came he knows that evidence is there he thinks there might be a video there he still doesn't ask for is this not all before the district court judge yes in the context of a hearing but there was one thing that was not before the district court judge and this is what we found out only at the very eve of trial that this very same individual who supposedly lost her phone and who the defendant would testify has seduced the men has tricked them into gaining property from them that this same individual actually sent a fairly seductively picture to the case agent in the case now he had received that picture prior to testifying at the hearing but he didn't reveal that information to the hearing court judge that would have been extremely important for the judge to understand and know because if that's the type of information that she put on her phone then maybe there would be in fact more than just potential exculpatory evidence on the phone and that that kind of stuff was basically more prejudicial than probative right more confusing probative to be to be more accurate that was when the judge decided i was not permitted to cross examine the agent  the same as whether it was material but in the context of the hearing your honor i think it would have added that to the judge's analysis and whether or not bad faith on the part of the agent had taken place because he understand the question well the timing yes she transmits the photograph you've alluded to yes after she's given back the phone it was after she lost her first phone this was a second phone this was a different phone altogether but the point is the first phone was gone and that agent misconduct that you're arguing about now happened when he gave her back the phone rather than making a copy of it and at that point there's no no basis for thinking there was an untoward relationship judge i'm not sure there's a basis for thinking there was an untoward relationship down the line but certainly not at that point when keep the when the phone was given there also then proffer sessions where this woman comes in to the u s attorney's office and again this is later in time this is not when things are in fast motion the government doesn't ask for a phone they still don't ask to try to get the information from their phone and interestingly in judge hellerstein decision he talked about the fact that this woman was not going to even come and testify had to be clear on that because the sessions when the woman comes in later are now no longer only with the age right that's correct at that point it's not the agent relationship it's basically others including am i correct the prosecutors that's correct so where where is there a basis to think there is a bad time me answer your question go ahead your honor the bad faith you are in this particular situation is that the agent may not have relayed what he knew to the to the counsel for the government i'm not suggesting that counsel for the government even knew this information i think it's information he kept to himself because i believe if he had said to them i just i know that there's some information there i've seen that there's text messages i know there's information which completely belies everything i put in my complaint i think the government  last right i do know that you ought to be because the agent testified at the hearing that he now knows that the the guns were not given on consignment that they were not obtain actually by my client but they were actually obtained from this woman who stole them from this man just good morning may it please the court my name is bennett carney i represented the government at trial in this matter and i now represent the government on appeal the defendant conviction should be affirmed for the following reasons first the district court did not abuse its discretion in declining to dismiss the indictment against the defendant in limiting cross examination of one of the government's witnesses on irrelevant and be relevant but the hypothetical you're proposing your honor is belied by the information that was before the district court when he made that ruling but it except the hypothetical so if it were if there were a relationship between the agent events concerning the source and mr clue that upon receiving this message was wasn't meant for him it was meant for a target of a separate investigation and the woman was having difficulty sending it herself don't know but i mean i'm a trained somebody would be prevented on cross examination from asking a question like that based on a finding by the district court that the photograph was sent for a reason he found was that it was not the main event and it was in fact a sideshow because there was no indication that there were repeated contact of this nature that the agent's reaction upon receiving that photograph in fact indicated th was no ongoing relationship he disclosed to the government right away and there was no he didn't attempt to conceal that and that he wasn't not in fact the intended recipient of that photograph and so when all of those facts were in front of hellerstein it was not an abuse of discretion to preclude cross examination on that topic i was asking him to resign correct to a target of an investigation the agent did not do so and the government struck to him to ask her not to engage in similar conduct in the future if i understand your argument you're saying this transmittal did not suggest any kind of a sexual or romantic relationship between the agent and the witness but rather viewed most favorably to the defendant that the agent was willing to break rules for this witness but that that was blocked by the agent's immediate disclosure of it and in light of those acted within his discretion is that your argument yes and judge hellerstein have all those arguments in front of him and explicitly found and did not abuse his discretion in finding that there was no indication that the agent broke protocol or rule in receiving this message but what about the failure to maintain witnesses or the woman's phone records counsel say that you in there were several reasons why the phone was never imaged the first was an operational concern in real time that the source needed access to that phone to continue communicating with ski the second was the timing concerns with how fast that phone could be copying well there was some discrepancy in the evidence on that point you're on time next day position to cooperate versus a historical cooperation or something that could be down the road but in this case as was apparent at the hearing and trial and as judge hellerstein found there was quick turnaround  they were going to miami within forty eight hours to set up a meeting with ski and the woman was required to maintain consistent contact with him and so the operational decision at difficulty transmitting that photograph the technology prevented her from texting the photograph which is why she attempted to send it to the agent  but i think the key point here is the defendant got the information he was seeking and he had the ability to use that information  so why don't you tell us what you think you gave him what what he thinks is missing what the defendant explicitly represented to judge hellerstein that he was seeking was some photographs and three videos that were on the sources cell phone another apparent from the audio recording of the february twenty sixth meeting he received photographs that are consistent with the descriptions that are on that all the o recording and he received the video that is consistent descriptions of what is on that recording now the defendant has not asserted that the other two videos would be different in any way where he has asserted is that he does not appear on those videos and he does not appear on the video that he received so would he if he had wished to make that argument and to introduce that video evidence at trial he had the means to do so he did not he had the means to cross examine special agent cunningham at trial about what he observed on the video what he observed on the source's cell phone and he did not and that is because those videos are not  it wasn't helpful to the defendant's offense to pursue that line of questioning put aside the defendant for a moment give the government document evidence of the alleged conspiracy and you're telling us that the government does not feel it's a blige to make a copy of that and maintain it and i think it would certainly be helpful to have a copy of that phone particularly because it would provide stronger and dishing all evidence against the defendant  there's given the fact that it was not apparently exculpatory when the government had it there was no obligation to copy it and thank you thank you others of briefly one of the statements that was made was that when the second this picture from the second telephone was transmitted to the agent that he immediately told the government about it the government did not tell defendant about that until just before trial and in fact i believe the hearing of regarding the brady violation occurred in between the time  doing anything untoward rather when the cooperators suggested he do something untoward he immediately reported it and therefore that there is no materiality to the to the circumstances why is that not persuasive my point your honor is that head judge hellerstein had that information at the time of the brady hearing he may have found bad faith i didn't believe that the government knew about that because we hadn't been told about it at that time i don't believe i did i don't believe i did your honors the other issues this in terms of bad faith and the court seemed to hit on this question the agent was asked about why he did not pursue this and one of his answers was well we felt like we had all the information we needed about this conspiracy again i've been doing this a long time i have never seen a time when anyone in this this office or their agent said oh we have enough evidence we don't have to go get more whether or not the investigation was ideal that doesn't go to whether or not you have sustained rapes eilish but i think it goes to whether or not the officer was being truthful to the court when he made those answers in fact when he said he didn't have time got showed that your client was not present at a particular event so you had the argument that you you say you wanted to me what's your response to that i think there are other videos your honor number one and number two the reason why we didn't push down that the government is saying all those videos could have shown that would have been favorable to your client is that he isn't present at certain meetings well he wasn't present in the meeting you got the video and yet you didn't argue that to the jury so they're saying this is really not something that was critical to your defense tell us why that's not sound because the superseding indictment that was brought down just before trial did not include the charge robbery that resulted in the obtaining of those weapons that event was actually excluded from the from the case at that time and the only hobbs act count involved what was going to happen in the future so from a tactical point it made very little sense to go back and talk about the that was actually excised from the indictment when we went to trial and it was actually and it was agreed by thing by all the parties that that event was a burglary and it wasn't a robbery and that it was the future  so called robbery that was was being tried thank you thank you i will reserve decision