that that the way i had always understood that provision of law when i was a district judge was you wish you the subpoena unless it's some luck that wants to present the united states and the governor to testify about their conspiracy against them if you just issue the subpoena or if the defendant wants the government to have to throw a few hundred thousand dollars that subpoenaing meaningless witnesses this respect to the issues that i think the court has the right framework for whether it should have issued with respect to the harmlessness of judge real failure issues and i think that what we have i mean how can you say that there's anything to this property it is believed that jeffrey mischler can provide relevant vital testimony for this case gone missing what it is believed there's no showing at lo and behold mischler turned out to be a phony and lost your money and i thought that was the defense sold mattered to me with the timing was when he started with mischler and when he knew that mr was losing money but he was defense at trial or his theory is that in order to get a witness to come to court to provide that i thought it was pretty obvious actually even from the get the proper the ideas to play missionaries that are work at the rule sounds like abuse of discretion but it's a constitutional provision about the right to subpoena usually with constitutional lawyer it has to be harmless beyond a reasonable doubt with that if i recall the right and with that a discretionary rule it's the other extreme abuse of discretion we've got some kind of in between abusive i don't understand how to review it it seems that way you wanted mischler and the government wanted to prevent the defend them from getting mischler and so the government put in that paper what was it eight days later yes around we were not aware of the initial application was fil to the fans had all the information all of the application was under seal but the denial wasn't the deny knowing the government saw the denial and was trying to bullet proof goods real's record i wanted to make sure that the court of the defense had all the information that we had on the that the real request is otherwise frivolous you think this was a frivolous request based on what you said you wanted the certainly the court i think was in the course discretion to to determine that based on that on the absence of any information in there beyond a reasonable doubt and if i could touch on that briefly judge kleinfeld alluded to it but here we had testimony from two of the victims trevor brewster and cleopatra mom casey that they had into march and april of two thousand and two lori levy was a victim that relied on a pitch that the defendant made in late april two thousand and three which was well after the proffer witness h we've got four harmless beyond a reasonable doubt so that we don't have to resolve the standard is only a half million of six million was invested with mission work and the investments were y sufficient given the straightforward arguments that had been made and and substance of the reasonable given that it was within guidelines a sentence there were no complex issues raised by the defend well here cedar versus mcgrath