page eighteen of the government's brief about the search of the conspiracy stash house the government wrote quote while island miller deliberated over whether island should enter the building and speculated about why the police might have been there miller offered to send a quote hey you want me to last send some unintelligible you want me to send a fatty island that ate the unintelligible miller laughs you island of god government has never properly explanations for this and i spent hours trying to figure out why this the the only reasonable explanation is also the obvious one the conspirators were hiding the conspiracy for this to gaskins that's why it's funny to think of se why not have an affidavit from mr gaskins if you have affidavits from others what why not have one from him that would put into the record evidence that from him directly that he was not knowledgeable did lack of specific knowledge of the object of the conspiracy didn't have the intent well your honor it was my understanding that the law made it very clear that a hearing would be the so i understand the question and i appreciate that and perhaps it was a mistake for me not to include an affidavit and that it's in that most end but nonetheless mr gaskins you know has the right to testify and having a you know testimony tested by cross examination in a live setting would be persuasive i think in a way that they would never ask mr gaskins it moves for unlimited discovery and an evidentiary hearing before the district what you mentioned in your brief that you didn't something like that summary judgment standard doesn't apply but isn't that exactly what would apply here well your honor i would love to they have court to apply a star exam sample under a summary judgment standard the court would have had to take all evidence in favor of the mr gaskins in this case because he was the one who was basically summary judgment was found against him so if the court applied a summary judgment standard then we would know you agree that abuse of discretion is the relevant standard here for district judges failure to rule on the procedural motion seeking an opportunity to testify and take limited discovery that would be an abuse of discretion review on our part i don't see why it would be tense the you know the abuse of discretion standard  is there for you no questions where the well where the court has an opportunity to or where the court the trial court has some sort of special knowledge in this case so that two separate questions one is the merits and one is the propriety or not the district judge having implicitly denied the motion for an evidentiary hearing and or unlimited discovery and if the latter that i was talking about the district judges denial of any opportunity to take any discovery and actually put forward evidence would that be a legal question or would that be abus discretion or a combination well in this case it seems to me to be a legal question you know that the judge instead of normal civil case it's certainly has discretion to limit discovery when appropriate party and also when the court you know this makes assumptions about evidence that could be clearly contradicted or easily contradicted by documents that were specifically identified you know we paragraph that's entirely lacked out except for the one sentence that said i think it was i think it said either at mr gaskins or the sag i can't remember will take the blame for everything but the whole rest that paragraph is blocked that i'm so based on affiliates and we have no idea what's there but it seems very likely that the rest of that paragraph is is relevant to mr gaston states on the ultimate merits question about whether the district court was correct in denying the request for a certificate that that is also reviewed for abuse of discretion i thought based on our court's decisions or but it sounded like you were suggesting that admission renewed from using discretion in this case is appropriate if there were a hearing if there had been a hearing a factual hearing this would be akin to a bench trial and then we would be reviewing a district and just determination of facts and resolution every circuit who's had this very unusual statute has relied on uncited and i don't see how you get over the language that ends with the sentence it ends with where as here the district judges exercise that discretion we cannot require and so on and so forth except perhaps in a case in which the refusal was completely caprices and without rational basis that is an enormous power to clear and i have not been able to find a case where a  of has been successful and whether i think a couple of been remaindered but has been successful in meeting this standard and i find it pretty hard to believe that this is the  st case that would clear that bar well your honor i would say a few things st this case doesn't these cases don't come up very often they're very rare so there just hasn't been much opportunity to  further develop the law i mean that particular case had a very to me odd statement where it said that the this of the circuit court shouldn't be or shouldn't force a that's what they that's how i read his the court's language he's the th of the district judges the th juror he's heard all this evidence well in this case that the judge heard this evidence and reached a wrong conclusion from it which was reversed by this court and very clearly wrong opinion from it at least judging by this court no evidence so in that for example in the order the judge may to deny mr gaskins motion for acquittal post trials the judge made these sweeping pronouncements that it is quote it is polluted lee clear beyond any doubt the defendant gaskins actions as a logical logistical administrator were not legitimate so when when you have a statement that is that is so sweeping and so you know completely you know incorrect if you don't mind me saying so you know especially given the complete lack of any evidence whatsoever that d t i drinking certificate and for it doesn't make sense to assume that the judge is remembering things accurately from a trial fifteen years previous you know as opposed to tell you something mr hall you're talking to somebody who was a district judge for four years over thirty years ago and i had one criminal trial that lasted three weeks the jury was out a long time i remember everything about the trial remember because he states that that d t i was a stretch for a drug ring and hardly pretended to be otherwise there was no evidence whatsoever in that trial that d t i was a crutch for the drug rep there was evidence that the only evidence that could possibly be determined to be that it was the fact that mr gaskins arranged the flights when mr miller asked him to do so but that doesn't make the bigger the bigger question and that i took the district judge has to be raising is where is a legitimate business and there's a very that you know your declarations attempt to fill in that gap and the br helpfully points out that investigator firms are not only working for government con and so there might be other clients but you know that the the district judge is looking at a tremendous amount of evidence of illegal drug conspiracy activity and and really saying come on use common sense if there's if the only game in town is the drug conspiracy then you know that's front at least that's that's how i understood his reasoning well there's evidence certainly that miller and the other conspirators got almost all their money from the drug conspiracy i think that's that's true the question is whether or not miller used d t i as a drug front and there's no evidence of that there's only evidence that that miller was involved in a drug conspiracy and that no other had this business u t i you know investigative firms that he was building up on the side the question is you know is there any evidence that mr gaskins who worked for d c i did the taxes etc us knew about this other i would love to have more evidence of e t i as the genesis but i was denied access to any of those documents there are bank statements i haven't been able to see there was you know there are there are these related documents that were seized from miller's apartment and miller's onse apartment that we should assume those have nothing to do with the drug conspiracy because if they had anything to do with the drug conspiracy they were battling with all the rest of the evidence and i didn't ask a question about the relationship between the previous opinion that our court handed down in this case and then the certificate proceeding that we're dealing with now is the way that you understand in a relationship that just by virtue of the opinion we rendered last time this drug conspiracy is very serious very near death leaves conspiracy if d fail to turn up any evidence whatsoever against mr gaskins and then go on to say well it's probably true that he was involved anyway that's there's nothing but speculation that would cause that there's no evidence that would actually believe that this is the court's opinion didn't write there isn't sufficient evidence mr gast it's involvement said there is no evidence of mr what about putting that in the context of the procedural posture which is the sufficiency of the evidence to prove something beyond reasonable doubt and you know the notion that it's a sort of a term of art is there any evidence sufficient that a reasonable juror could have found beyond a reasonable doubt and you say that once and then every other time in the opinion you say no evidence no evidence no evidence meaning no evidence that would mean that bar whereas it's a completely different bar in the civil determination of innocence sure i think that you know the way i read the sports previous opinion  really to me used much stronger language that was necessary and you know if we're going to be i don't believe that we should narrow your opinion or narrow the reading of  this this you know these cases where we say there's insufficient evidence but then try to take every word completely literally an opinion that says that the nine hundred and fifty opinion for example that  had reference earlier you know the language and this court's previous opinion was far far far stronger than would have been necessary to just say well there wasn't sufficient evidence disagree with you on that i know you resist that but just assume for argument for see you disagree with that we disagree on that and we read it more in the way that judge phillip was suggesting and i don't mean to suggest the judge philip necessarily means it that way i'm just saying let's just assume that it's read in that way and through the lens of the beyond a reasonable doubt standard and so that's what our prior opinion stood for then then the opinion itself doesn't do the work to give you an entitlement to a certificate at that point because the burden is on never there so we do have to take into account you know the possibility and what we have is we at this constellation of evidence and so when you look at that constellation of evidence you know regardless of what this court its previous opinion when you look at that constellation of evidence it proves i think beyond a reasonable doubt he had a shadow of a doubt that he wasn't involved you just don't have that kind of investigation and don't turn up any evidence it doesn't make any sense you don't have a you don't have a person who's a minister for administrators for a drug conspiracy as the government puts it and puts a man here living in a modest apartment with his mother for years and you don't have you know a long set  these are these are kids are drug conspirators who are you know involved by a conspiracy so we have to ask why didn't they say he was involved and i think the only reasonable thing to lose and that is he wasn't ok let me leave my colleagues on have any additional questions for you at this this case the district court properly denied him do not abuse his discretion in saying to grant mr gaskins a certificate of innocence because he failed to establish that he did not commit any of the acts charged you chose important to remember that the burden of proof at this juncture is on appellant to show his actual innocence which is very different as the court realizes from this court saying that there is in evidence of his guilt in the conspiracy beyond reasonable doubt knowing that the burden is on mr gaskins who chose not to submit an affidavit explaining his knowledge and his intent in this situation proceeding the courts or the government is unaware of any such requirements and the few cases that have decided on certificates of innocence indicate that they can be decided on the paper on the trial record documentary have announced affidavits and so forth that are submitted by the parties did the government respond to the motion for an evidentiary hearing i didn't see in the record i just anything in the record that the government had no objection it appeared to the request for limited discovery and a hearing and i'm just why would you i mean typically when a party has the burden of proof they also have some opportunity to gather information and or you know have a process of putting that before the court but if you're reading that this is information in criminal proceedings here that he would need additional discovery and frankly a number of the documents that he cited particularly the lease agreement and the rental agreement for the staff department  those are publicly available those work were trial exhibit the flight information document was also a trial exhibit to the extent that he attached to his motion for  discovery an f b i interview with mr miller it's clear even with the redacted information that it in fact mr miller has been spoken to we have a situation here where although dylan did not bother to submit  to that in order to have an opportunity i mean eleven major difference obviously between the criminal trial and this civil proceeding is mr gaskins would have his own declaration that cuts off his opportunity to be heard in person and hearing is that your position that if he had submitted a declaration that  district court might have exercise discretion to go forward and hear from him or not but that that evidence would have been employees but that given that he didn't do that he forfeited in me even though he asked for the ability to testify and to get more information that he's forfeited that by not putting a declaration in the record i think so given given the case law that we have were there it's it's of course appeals burden to show that he's actually innocent and in it including crime like conspiracy that's your best evidence what is in mr gaskins mind when you are seeking to get money for an unjust conviction and the burden is on you and knowing that the case law does not indicate any sort of her quiet meant for an evidentiary hearing or discovery it really is incumbent on you if you're going to support your burden by honor of the evidence to put forth what was in your own mind all the case law in our circuit is very very sparse indeed the case law nationally this is pretty sparse but you do cite the polonium versus united states case out of the seven circuit but your honor which does seem to support remain a for an evidentiary hearing in this case because there there was a it was the inverse there was a certificate grant but the district had not yet heard from the former prisoner on his state of mind and there are there to criminal intent was was key and that was a case of of i think it was  exporting defense articles without a license and and so why shouldn't we be just as willing to vacate certificates and nial for want of the in person testimony from the very person who's state of mind is critical here it was a very narrow question about  i believe the question about understanding it correctly in polling and was about whether or not a particular item which was a rifle scope was considered a defense article under the statute and there was some question about its classification and whether or not it would be evidence allowed from the agency about its classification whether or not it regulatory criteria and then if that happened if there was such evidence from the agency and whether or not it meant regulatory or mint then as a practical matter defendant could show was actual innocence only by testifying about his knowledge that's that's different than what we have here where really the whole question before the court to establish his actual innocence is what was in mr gaskins mind he chose not to tell the court that and there's really no reason to give him  apple on the i don't see how that distinguishes pulling in which also dealt with what was in the individual's mind whether he was you know someone who had reason to believe that the scope was a controlled article or whether it was plausible as i think he claimed that he thought there was some kind of you know  embargo to indonesia or something but the question is the same in the sense of we need to have the district court be able to probe and a sas the credibility of the person who's claiming lack knowledge and you know when you actually have that person on the stand under cross examination and in mr gaskins case saying yeah i worked for this miller for a while and you know counsel could say well you know did it surprise you that there did not seem to be very many clients coming in asking for investigative services or you know and i mean isn't that just the kind of thing that were mr gaskins able to testify credib y the court would potentially be swayed by and were he not that one would have more confidence in the denial your honor i would just say st that i'm not saying that a court can never hold an evidentiary hearing certainly but in this case that kind of similar to the grub's case in the th circuit the defendant chose not to add that to the record i'm therefore the court probably relied here a lot on the trial evidence to make its decision  chose to put in other affidavits not his own and i would also note that twice in his pleadings mr gaskins said that he believed he had met the burden to obtain a certificate of innocence i'm alone and it was only if he thought that the court was going to rule against him that he argued that he should get a hearing and and right to discovery and again it's simply given this case given the real knowledge  discussed yet the fact that judge lamberth also said there was a failure on this prong about neglect or misconduct and he ended by saying some of the trial of events we said in our opinion reversing his conviction although there was substantial evidence of the wealth amassed by other  was no such evidence regarding gaskins to the contrary he lived in a modest apartment with his mother now if we take miller's affidavit in this iteration of this case  gaskins not withstanding he was a go for insisted that miller prove that this investigative agency was on the up and up  didn't hear it all right well male miller painted the picture and i don't know what's wrong with my internet again but painted a picture of a goal for being very punk chilliest to the extent of insisting that he prove that the business was on the up and up so my question i guess from the trial evidence is this substantial evidence of the wealth amassed by the other  reasonable for someone like gaskins who made a big deal out of making sure this was a legitimate business do you think that that investigative agency w head i recall there were there was trial evidence about how much money was being obtained you know how much it's going to heroin was in the you know five figure numbers are is how much it was worth when it was bagged and so far i believe there was one and i want to cooperate or who was talking about having a lavish lifestyle but i don't think that it really answers the questions to say mr gaskins got six hundred dollars a week for him in going into the conspiracy it's not clear that the fact he made less than other conspirators for instance means that he was not a participant a knowledgeable and active participant in the conspiracy well what i guess what i'm really asking is this is it reasonable if you assume that mr gaskins did all this investigation of the agency st and in the face of substantial wealth of all these people he was dealing with he still thought well i'm still suspicious but i'm not going to do anything about it that's the should have known part of the problem your honor and i don't think it's reasonable for him to say that i'm seeing his wealth and it doesn't raise my suspicions particularly when you look at it along with the other evidence he had a drug sale of his own to mr briggs it was a conspirator in this case so this isn't somebody who was a babe in the woods who knew nothing about the say you know what you're going to you know perhaps you order business phones but you don't do it in your own name with your own social security number and then just hand them off to the other folks so does it i mean it's this is a curious position to be in but but let's say you were the district judge and i just wonder how much the formalities matter you know that the flights that gas were by as you say a money mule but the drug money there was not from the drug of which mr gascon was convicted so there is a you know he was convicted a heroin conspiracy even though the the broader conspiracy the conspiracy charges generally were a number of different drugs but if that you know brown and i don't remember whether it was p c p or the money coming out of that locale wasn't heroin money does that matter you know how formal like it's like they're the evidence that comes the closest to saying mr gaskin my the been putting his head in the sand if if the those close you know implications of come on guy you should be you should be backing out away from these people are not the thing that he was charged with of that prevent him from getting a certificate of innocence or i think you can look at all the evidence and deciding whether or not to grant a certificate of innocence and one of the prongs under the statute is that he  show that he did not commit any of the acts charged and that he didn't buy misconduct in the glass concept cars to bring about his own prosecution so here he was charged with conspiracy to he didn't know already what was going on he had his lease name on the lease for the stash apartment on the ranch what would cation the utilities in his name for that apartment so forth and the court will recall too that there was a lot of evidence at trial that although d t i was holding itself out as a defense investigation agency mr kramer from the federal public defender service testified circuit reads that too narrowly that the grant court before circuit got it right that you can look at the evidence at trial and so forth is just not a matter of you know and you have that any other material step to for instance i think that case w making a false confession in order to create your own situation right so we have we have different courts of appeals that look at this prong differently sort of as it stands right now one of which would be in your favor and one of which would not on this problem and can i just go back to the other prom for one last question  e and there's one line of the discourse opinion that was interesting to me and is one page one hundred and five j one of five at the end of the st full paragraph and this is after having gone through some of the indications about whether gaskins would have known that he was involved in some an enterprise that had an alleged illegitimate object and the the dischord quick caps off the paragraph by saying the burden of proof belonging to gaskins in this action this argument does not persuade without more affirmative evidence and on the without more of affirmative evidence part and i suppose one potential response to that as well there could have been more affirmative evidence if the motion for an evidentiary hearing would have been granted or some discovery would have been allowed or some combination thereof and then you've got your point which you made your brief in your reacted this morning to the effect that while there could have been more formative evidence had an affidavit been submitted by mr gaskins and i'm just wondering what we do with that line given that the district court itself seems to contemplate the possibility of more affirmative evidence making a difference i would just read that your honor is saying that mr gaskins did not meet his burden of proof even after saying twice in his playthings that he thought that he had presented the next evidence to you in the pleadings alone to get a certificate of innocence that's all i mean that's an alternative argument and i find that a little harsh in the sense that you know he if he looks at this opinion which does involve very far reaching investigation many many cooperators and if the prosecution really were dotting its eyes and crossing as to that would have had one of those cooperators expound on mr gaskins role that didn't happen right and i you know as i was saying to mr horne all you know the no evidence no evidence has to be taken in the procedural posture but nonetheless there's you know the court of the say no evidence no evidence so st line of argument on their part the acquittal for insufficient evidence alone is enough nd line of defense which the government never opposed is give us an opportunity to collect and put in evidence what's wrong with that  just simply that the burden was on him and based on the existing case law there is no clear right to an evidentiary hearing or to discovery and in addition to that it's simply a matter and i grant lee i just don't see what is going to happen in discovery that is going to show his state of mind i believe that there's just no to show that mr gaskins did not act as stickle support who was arranging things that were not him touching the drugs or the conspiracy on so i thank you don't you look at the items you attach to his motion for discovery it's stuff that he had it was bigger tips already they were exhibits from trial hadst and information that he wants more discretion for the district judge to not even mention the knowledge or rule on the motion for limited discovery and an evidentiary hearing i think it's implicit in the court's decision that it that it was in this case because frankly this case is trying to say i don't know what was in my head which is of course ridiculous but let me make sure my colleagues don't have additional questions for you miss kelly i do have one out of that is this this very high bar that our court has set with with the use of the word stole to five and if you look at that care graph the court it doesn't limit it to the presiding judge but it is the presiding judge in that case and there are a wreck and they're going to be times and i think some of those other cases at least one of them had a district judge reviewing a certificate of innocence who had not been the trial judge but here judge lamberth had been the trot trial judge and so our court lessening of that if he hadn't banned other words the use of the word stultify you know you can see the panel saying this trial judge south through three months jury out two that he's got to certify that the defendant is in fact innocent and had nothing to do with his prosecution except in the that we're going to say only if perhaps the trial judge was completely capricious and without rational basis in denying it that's a i don't know that i've ever read a standard of was a very lengthy case and i would also note too that this this is not a case where there is really a concern that the sister court has forgotten the facts i believe mr miller within the last six to nine months  the argument about the substantial of the others conspiracy i'd like to point out that ringback my understanding is that as for the others were matt miller and the conspiracy i believe miller was sort of like that middling figure in the conspiracy as opposed to the others who did have is his opinion which are not factual which are contradicted by the record and he just makes those statements and you shows no interest in hearing from the defendants if you had an open mind the judge had an open by a judge that want to hear from that  in but not the evidence that that was and so on what authority would we order the district judge to have a hearing rather than simply remand for him to