on where to pay attention the first is was mr afforded a fair trial that would dispense of the other two issues if it were resolved in our favor the second is whether the sentencing proceeding was done properly and the sentence of two hundred  ninety three months for a first time nonviolent drug offender was both procedural in substantially reasonable and the third issue is whether the forfeiture order for fitting the defendant's home and one point nine million dollars  based on an amount to be proved at trial and the government failed to prove that mr received even a penny of jug proceeds for that reason because of the ample rez record before you i don't think there's any reason to remand it the simply no evidence that any money was received by mr g bo that was presented at the trial and they had the opportunity to present it they failed to do so well but did they know that they had to do that at that point time well i think if they had read the statute they would have your honor now there was well lots of people read that statute in it took justice sotomayor and everybody but justice corps to tell us what the statute meant after years of practice so i recall vividly at the at the world argument on this in front of judge johnson you know they brought in their special character to she and i don't know if she's here today but that is their special prosecutor who specializes in these cases and i said look you grab the drugs you can keep the drugs which is really the rule it's the property obtained which was the drugs which was maybe money obtained by stanley walden i mean that's the essence of forfeiture we all learned it in law school and the case lot went so far beyond that and then they told me well that's ridiculous and then he cut came down so i think i think that they were on notice and i don't think they should be allowed to reopen the trial record and frankly i don't i doubt even if they did that they would find any evidence of that again there's lots of things in this case to forfeit there's that there is something there which would have helped your client whether on cross examination or spoke with scope atory i still don't see why in a while because i wasn't given enough reason swahili language translation assistance i asked for it after the trial and was denied it by the district court yeah thirty three more yeah i want to go here is your procedure for doing that not that i'm aware of how do you meet your burden to show there's something there well i think my burden is to is to show that they're with the trial was not a fair trial so the i mean i think there's enough there to show that the combination of the late disclosure and the denial of c j we source's undermines confidence in the trial and there and you know i've given snippets of objection to the only disclosure right around the time of the store the trial when they said when the district court said i'll give you know there are no other day than to go through these records or more the doesn't seem to be another objection to the well so the rule on that your honor and that's but there wasn't a subsequent objection i asked for for a delay it turned out in hindsight  delay of a day wasn't enough i'll concede that's sort of a hindsight analysis but the rule on that that i would urge this court to adopt you have to find the name of the case but there's a d c circuit case that makes it clear is that in situations of late disclosure of brady there is no burden for the defendant to ask for an adjournment and the reason for that is because if that if if if the rule where the defendant had to ask for it it would really give a tactical advantage to the government and encourage this they talk about the specific border crossings on the specific trip that he was on that that the cooperate it was on when he was caught but the key here is i asked for a private eye so that we could call those numbers and find out who she was and find out more about it and time after time after time i was denied that by the district court and it's some point there has to be a remedy i can't answer all your questions about it because i'm not allowed to have an investigation so let me go back to one other point on this is in this same  what you got from the government after you filed a motion but as i understand the record you made a request for this information how much and i'm going to have a straight months in advance why to why so long to file it well first of all at my the district i practiced in as an assistant u s attorney and as defense counsel there was pretty much at least quasi i open disclosure what is the practice in the eastern district chua's i open disclosure the practices and i want to sing the praises of the eastern district while criticizing this particular prosecutor i've been on the c j panel for twelve years i've never had occasion before to accuse a prosecutor of misconduct i mean they don't do that so we trust them and i didn't know this particular prosecutor but i trusted if this prosecutor says there's no brady there's not going to be conversations about about crossing borders on the very same trip so yes well the other what was the objection by the government as you understood it century disclosure of everything out of that cell phone they said there were safety concerns and there's no hint of violence anywhere in this case i mean it's a drug case but there's no they said there were safety concerns that and that was enough for the district judge because they get it we trust the prosecutors in the eastern district and part of the reason we trust them is because we have these rules that they're supposed to follow and they take an oath to follow and they vote and in this case this character newsy violated the rule and she violated it to get tactical advantage i mean she violated it so that she could sandbag me the friday night before trial i was there a five pm the records weren't there i sent a paralegal two hours later they got they gave us a drive that didn't work saturday morning we're calling screaming and  yelling to to the prosecutor's office make this drive work finally saturday night we realize that half of it's in swahili sunday morning i'm calling around to my friends and family to find someone to speak swahili what the heck is this you know by tuesday morning because monday we had off were a trial and were our backs against the wall we had a whole strategy that if i had time to consider the new evidence would have been completely rethought you reserve three minutes for so with respect to forfeiture i think they're a couple of different issues and some may be more complicated or newer than others we agree that the forfeiture judgment as it stands should be dated after honey cut which now explains to us what's that this statute means something different than what everyone thought it meant i think the question here is what should happen after the vacant chair and our position is that the case of the forfeiture judgment lee should go back to the district court for the parties to argue under h trips so it's not the case that because you know cooperate or ones drugs were seized you know there's no evidence of any other drugs and you know the government already has those drugs because they were evidence of prior trips so there are potentially monies out there so that's the second point the third point on the house the house is sort of tangential the house comes in as a substitute asset so first we just tangential but it's terribly important in this been six months or eight months or a very long time to review everything that isn't in swahili if there was anything new it would have been brought to the court's attention so we can set those aside the record is not clear about how many swahili pages have not been reviewed know where in the record there's one letter to judge johnson that suggests that there are hundreds of pages that haven't been reviewed but hundreds of pages of a celebrate report which is what's being talked about actually very little contact because there's lots of headers and things like that so the records not clear and what hasn't been reviewed and the record is also and it's not even clear that judge johnson denied the request for a translator after the trial the defendant sort of submitted this letter saying i know you granted me translator during the trial i'd like to keep using her and then there was silence and that request for all that requests was made ex parte so the government was unaware of it and it wasn't renewed so the rule thirty three brief that doesn't mention no translator there's a rule thirty three reply brief that doesn't mention it no translator there's no request for an adjournment of the rule thirty three argument there's no request for an adjournment of the sentencing then we show up at sentencing and there's a passing mention to a pending request for a translator but nothing more so that sort of the record with respect to what might be translated under review think it's far from clear that even the defendant believed from conduct that there would be important new evidence and that's because a lot of what was in swahili was reviewed it's certainly not exculpatory in the sense of tending to show that the defendant did not commit the crime it's arguably giglio material to impeach the cooperating witness but the cooperating witness was cross examined based on it extensively the defendant spent i think it's twelve pages of summation transcript you swahili interpreter and that doesn't sound right i'm not arguing that that was the best practice or that it is standard practice in the eastern district for the disclosure to happen in that matter it's not the government's position the position is really here we are today you know what should happen to a translation and renew the rule thirty three motion before the district court i mean that that is i would say our alternative argument but and i think that is as far as this court should even think about the top of the guideline range to a number of the six kilograms the government was willing to concede should be considered files a strange statement of reasons which is unclear whether it's a non guideline sentence or the top of the guidelines sentence and then five months later after the appeal is filed files the new j n c with a new statement of reasons i've never seen that so i don't i don't concede and i will explain in a second but i just want to add one more thing to your prior question about unfairness which is part of the unfairness about the timing of disclosure i think needs to be viewed in terms of the ultimate result which is limited or no impeachment material that was actually found in the swahili messages extent will know a lot of the work and so it i get but in what there was there is a very limited corroborate or was there some let's let's say for purposes of argument it's giglio or it could be considered so there is there is some but the question here is really would anything more of being cumulative the cooperator was cross examined he admitted he lied in a number of different ways his credibility was attacked at sentencing he was also at summation he was corroborated in a number of ways so the question is really hypothetically if there's something out there in the swahili that's on translate it would it just be a cumulative and i took you away from answering to question what you were going to sow so i think the the literal procedure of the second judgment or the second statement of reasons coming later is odd or it certainly uncommon but i think the record at sentencing is clear that the district point the lower quantity well i think he could he can do both raise you know that well i mean that the statement of reasons explains that the below guideline sentence is because of family circumstances but i think may the may months later that's right but i think district court you know often this happens in just a court will you know sort of calculate the technically correct guidelines range based on the facts and then depart from that you know for whatever reason and i think here the district was saying well he said he found the facts in the p s r and we actually went back and forth about you know a little bit of the objections in the government's you know th defense counsel brought up the government's letter which talked about the six point five grams number i don't i don't recall him using the words this is a a downward departure but you know i think the court can be guided by the guidelines but also by other considerations and i think what happened here is the district court didn't disagree with the facts in the p s r but then believed under thirty five fifty three analysis a lower sentence was appropriate argued to the jury all right the court found during that were you can argue well the court found that the government had not connected the evidence as of you know whatever the middle of or toward the end of the trial at sentencing the district court also had the benefit of  thirty three briefing which lays out all the connections which were not presented to the district court during the trial so i i don't think that's inconsistent because i think more information was shown to the district court about the links between those couriers at the time sent by the time he was sent by the time of sentencing we've laid that out and that's in the government appendix we have the excerpt of the rule thirty three brief i apologize i don't have the page number off the top i have but but essentially you know there's been no showing of prejudice based on this record given how cumulative any additional swahili impeachment material would have been in this trial and certainly to the extent the court disagrees with that the proper remedy with respect to the curve current standing of the case would be access to a translator but the court doesn't have to reach that for purposes of the brady argument here because the record is clear that at a minimum there's no prejudice and there's no reason to believe the outcome of the trial which is really the standard here would have been different on that was under the correct good lines would that put your client at risk of getting up ayers that certainly at risk i think it would if we were given an option to litigate that we'd be able to show with the danger although you were rich yeah i mean i would say we're also requesting that the case be reassigned to a different judge so yeah so let me let me let me start with sentencing which i don't really appearance of unfairness your honor is the standard it's actually not that high a standard it's routinely done in the eastern district where when cases are reminded at the district court level it much of the rules i think that there is a district court rule on that it's  told him that this was you know that there were significant mitigation here he said well isn't that an argument that should go to congress because congress essentially sets forth the guidelines i mean that is ignoring the now what twelve thirteen years since booker that is not the approach that he did have much broader discretion which he seemed to not understand the you know the sort of eccentricity of the back and forth p s r sorry statements of reasons including one after i had filed problem is that the p s r didn't adopt a view of the facts it reciting the government's view of the facts it acknowledged that we had a different view of the facts and said well we will leave the resolution of these facts to the district court i didn't ask for  specifically say that but i mean i think if you look at the agenda i don't have a memorized but you'll see that it acknowledges that that's one of the things that i'm objecting to and also that was something where the government itself said it would be reasonable to use the six point seven instead of one hundred kilos which was hanging my head on it didn't do very well with with the judge i'll move on to the other two issues very briefly  in terms of i just want to challenge something the government said that there's evidence in the trial record of proceeds of this conspiracy beyond the drugs being see just i don't know what they're talking about maybe hotel rooms were rented i mean there's no there's no bank records is not a case with any financial evidence was submitted that i'm aware of at all and i don't think they'll find that there and i think that record is is before you and this court can decide that without a review and in any event i noticed that they didn't specify what they meant by that  that's that's what have sound forfeiture i do want to make one point about the swahili and the rule thirty three point i apologize i should have done an analysis as to how much swahili was left on translated after trial and how much was was was  translated the point there though is that anything exculpatory is going to be in swahili because mr doesn't speak swahili and the cooperate or the drug smuggler and his other cronies who are working with him do so almost i mean again and this is part of i want to judge you know not responding to c j requests has the effect you know when the clock is ticking your client is in prison has the effect of denying them and that's and it was it was effectively tonight i will say al getting things approved i mean swahili translators are are less if it will come to court every day the way spanish and french translators do but this has been a constant problem getting getting these resources and again i i feel like well i'm one guy what do you want me to do and the fact is i think we did everything we could to renew that and now to show the prejudice that you know this sort of pocket veto caused oh is that just it's an aside i'm not outside this but is that that whatever invoice has been submitted by the translator or invoice is still awaiting approval at this point approved the work at the trial i think has been approved very recently in the last couple months my office handles it but it took that long for her to submit it correctly for the judge to pay attention to its end the hundreds of hours or pro bono work we don't bill for that you know of not hundreds of hours but hours and hours of my paralegal on the phone with the clerk's office with the judges clerks and there's been just a sense you know that that it's very frustrating and you know i would try to find you know i would try to work this out as you're probably aware there's an effort to try to get in the c j community to try to get approvals for resources to be done by someone other than the trial judge who would come in and to separate those functions which i very strongly support you have a statute i think that covers that so well we might even supported those of us on the c committee here it takes more work but keep working at it thank you very all well all right thank you both thank you both will reserve decision in this matter but a helpful argument on both and the last case on our argument is green versus st barnabas hospital and ms green has five minutes to argue and we understand the counsel for the hospital is here if we have questions for him or them right to have you here mr frank right