[00:00:01] Speaker 04: Thank you, Your Honor. [00:00:03] Speaker 04: Good morning, and may it please the Court. [00:00:05] Speaker 04: Craig Jerome on behalf of the Defendant Appellant Frank Gonzalez. [00:00:09] Speaker 04: I'm going to attempt to reserve three minutes for rebuttal if we make it there. [00:00:13] Speaker 04: We raised three substantive issues in our briefing before the Court, but given the time constraints of today's argument, I'm going [00:00:20] Speaker 04: But unless the court has other opinions, I'm going to attempt to focus on the first and the third of those issues, essentially the Brady issue and the methamphetamine guideline issue. [00:00:34] Speaker 04: So again, unless the court has other questions, I'd like to turn first to the Brady issue. [00:00:41] Speaker 04: In this case, the government repeatedly gambled with its Brady obligations. [00:00:49] Speaker 04: only disclosing information to which Mr. Gonzalez was constitutionally entitled when they were backed into a corner and had no other option. [00:00:59] Speaker 04: The government repeatedly engaged in gamingship by gambling basically in two major ways. [00:01:04] Speaker 04: First by insisting over and over again that they would be able to prove their case and lay the foundation for crucial evidence in this case without calling [00:01:13] Speaker 04: the cooperating source as a witness. [00:01:16] Speaker 04: The second way was by betting that even if they were able to do that, that the materials that were not disclosed in this case didn't need to be disclosed under Brady and Giglio as potentially relevant to... In the end, they disclosed the information, although quite late, but in time for you to use it for cross-examination. [00:01:37] Speaker 03: Were they required to do it any earlier than that? [00:01:40] Speaker 04: Well, I think that Cloud, which is, I think, one of the court's more recent Brady Giglio cases, says that it needs to be disclosed in time that we can make good use of it. [00:01:51] Speaker 04: And the prejudice, you know, that gets to sort of the third prong. [00:01:54] Speaker 04: The prejudice goes beyond merely just having the information available for cross-examination. [00:02:00] Speaker 04: I mean, there's a degree of chaos. [00:02:02] Speaker 03: Is there a case that says you get it earlier than, in fact, you were given it? [00:02:07] Speaker 04: Well, I mean, I think the issue, Your Honor, is that if what's happened in this case is allowed to happen, if this court sort of places its imprimatur on the idea that you can disclose Brady material a week before trial when you're forced to do so, and then some more can leak out a few days before trial, and then mid-trial, some more can come out. [00:02:29] Speaker 04: And I do want to talk about some stuff that I also think we were entitled to that we didn't receive in this case. [00:02:34] Speaker 04: But if that's the standard, that's what the government's going to do. [00:02:38] Speaker 04: And I think the government's. [00:02:40] Speaker 03: I understand that, which is basically what my question is. [00:02:43] Speaker 03: I'm sympathetic with your side of it. [00:02:44] Speaker 03: That is to say, more information earlier is better. [00:02:49] Speaker 03: You can do all kinds of things with information if you get it early. [00:02:52] Speaker 03: But I'm asking you, do you have a case that tells you you're entitled to get it earlier than, in fact, you got it? [00:02:57] Speaker 04: I think what the quote from Cloud [00:03:09] Speaker 04: The rule is disclosure not gaming the impact that disclosure must have. [00:03:14] Speaker 04: It also says, and I'm not finding the quote, but it says that it needs to be disclosed in time for us to make use of it, and not just beyond. [00:03:26] Speaker 01: I think we do have case law that says that. [00:03:27] Speaker 01: Yes. [00:03:28] Speaker 01: I don't think that's contested, or at least I guess I'm just one of three, but I don't think that's contested. [00:03:35] Speaker 01: And I think the district court in this case recognized that and sort of shook her finger figuratively at the U.S. [00:03:41] Speaker 01: Attorney's Office and let them know that she took these Brady obligations very, very seriously. [00:03:47] Speaker 01: So she did this in-camera review, I think mid-trial. [00:03:51] Speaker 01: And so, but I think the situation is that she's made the decision that some of the what wasn't disclosed was cumulative and made the decision that you got it in time in order to be able to use it meaningfully. [00:04:02] Speaker 01: And that will be, you know, really important call to be made in the trial court. [00:04:06] Speaker 01: And frankly, my vote is that the U.S. [00:04:08] Speaker 01: Attorney's Office has taken a big risk there. [00:04:11] Speaker 01: But on this case, [00:04:13] Speaker 01: What we have is a ruling from the district court judge that I read to be saying she thought you got it in time and that you weren't prejudice. [00:04:20] Speaker 01: So I think, and I want to give you a chance to respond, I think you have to convince me that she abused her, the district court abused its discretion in making that ruling in order to prevail here. [00:04:27] Speaker 04: Yes, your honor. [00:04:28] Speaker 01: And I, so what's your best shot at that, that you got it too late and that you were prejudiced, sir? [00:04:32] Speaker 04: Well, I think that the prejudices manifest in this case, and there is, like I said, there is some stuff that I think we should have received that we didn't receive. [00:04:40] Speaker 04: But even based on the stuff that we did receive, we had no time to do any pretrial investigation of the complaining witness or some of the claims that the complaining witness made. [00:04:51] Speaker 04: We were not able to ask more specific questions during our jury selection. [00:04:57] Speaker 04: We weren't able to ask or make more pointed use of the information during opening statements. [00:05:03] Speaker 04: You can tell from the trial record. [00:05:05] Speaker 01: Are we talking when you say the information? [00:05:07] Speaker 01: Wasn't the information information you already had but there were other instances of the cooperator? [00:05:12] Speaker 01: What is it you didn't have that you think you got too late? [00:05:15] Speaker 04: Well, one of the things is these cooperating source agreements, which we didn't have, and we had to fight tooth and nail. [00:05:23] Speaker 01: You know he was a cooperator, and the jury knew that he worked as a cooperator. [00:05:27] Speaker 01: I think there were other instances of that, right? [00:05:29] Speaker 04: There were other instances. [00:05:31] Speaker 04: I'm sorry. [00:05:31] Speaker 01: Just enlighten me, because I don't want to, if I have this wrong, this is your chance to tell me. [00:05:36] Speaker 01: But my understanding is that she thought what had not been disclosed was cumulative, because it was other instances of this individual serving as a cooperator, and the jury knew that. [00:05:46] Speaker 01: And I think there's an example of an earlier cooperation agreement, but not one that he had breached. [00:05:52] Speaker 01: So please correct me factually if I've got that wrong. [00:05:55] Speaker 04: That's the cooperating source agreements, which actually the government says they provided quote unquote voluntarily during the middle of the trial, but which they basically disclosed when it was made clear that it was gonna get litigated. [00:06:08] Speaker 01: I agree with that, but my point is, I think that Drew knew this person was a cooperator. [00:06:13] Speaker 04: The jury knew that the person had been a cooperator back in 2021. [00:06:18] Speaker 04: They did not know and we do not know and this court still does not know what the circumstances were of the person becoming a cooperator back in 2021. [00:06:27] Speaker 04: Until the CSAs are disclosed, we don't know the formality of this cooperation agreement back in 2021, whether he's sort of cooperating on a more informal basis. [00:06:40] Speaker 04: The fact that the cooperator back in 2021 signed two cooperation agreements, entered into a contract with the government where they're saying, I'm not gonna break the law anymore. [00:06:50] Speaker 04: And then a year later commits a new very serious criminal offense. [00:06:55] Speaker 04: I think that that was, [00:06:56] Speaker 04: area for cross-examination of both the agents and the cooperator. [00:07:02] Speaker 01: And you had that information, you got it too late, is that the issue? [00:07:05] Speaker 04: Yes, we got it too late and we weren't able to more fully investigate the circumstances under which they became a cooperator in 2021 and we weren't able to fully litigate that. [00:07:15] Speaker 04: And the government to this day has never said what the circumstances of that were. [00:07:20] Speaker 04: in their briefing before this court they say well people don't always become cooperators because they've been involved in some criminal activity but they've never said that that's the case with this cooperator it's not in the sealed file that was provided to this court the reason why he became a cooperator in 2021 and I think that's a significant issue and if in fact he was not [00:07:43] Speaker 04: brought to the attention of the DEA in 2021 because of some criminal activity or some involvement in drug trafficking. [00:07:51] Speaker 04: His case, his handling agent from 2021 testified at the trial. [00:07:55] Speaker 04: So I don't know why the government wouldn't have gotten into that with the case agent if there was an innocent explanation. [00:08:01] Speaker 03: Help me understand. [00:08:02] Speaker 03: What you would have done or how it would have helped you to have had the information earlier? [00:08:08] Speaker 03: That is to say the cooperator does a control by comes back out gives it to the agents they then go get a warrant and then they find all kinds of things in the house, so Would they not have been able to get the warrant? [00:08:22] Speaker 03: I mean because once they get in the house and find all this stuff. [00:08:25] Speaker 03: I think your clients in big trouble and no matter what this the cooperator says I [00:08:31] Speaker 04: Well, first he's charged with the stuff directly involving the cooperator in count one. [00:08:36] Speaker 04: So that's a charge for which the cooperator's testimony is directly relevant. [00:08:41] Speaker 04: The cooperator's testimony, or the fact that there's a methamphetamine transaction on January 26th, the day before the search takes place, also certainly colors the jury's interpretation of the evidence of January 27th, which is [00:08:57] Speaker 04: that they found methamphetamine in a car on the property that's registered to Mr. Gonzalez. [00:09:02] Speaker 04: If the jury didn't find that he had sold methamphetamine the day before, perhaps our explanation that that methamphetamine belonged to one of the numerous other people at the house or numerous other people that may have had access to the car [00:09:18] Speaker 04: would have been more compelling to the jury, right? [00:09:21] Speaker 04: The fact that there's a methamphetamine transaction on the 26, I think, colors the evidence of the 27. [00:09:28] Speaker 04: The other thing that I want to make clear to the court today, and I talked to Ms. [00:09:33] Speaker 04: Uecker about this this morning, but the sealed case file that was provided to the government, to the court, there's an attachment B in there, which is what [00:09:43] Speaker 04: The district court reviewed mid-trial or what the district court ordered disclosed mid-trial. [00:09:53] Speaker 04: What was disclosed to the defense is not exactly the same as what is attachment B and what was provided to this court. [00:10:01] Speaker 04: What was disclosed to the defense has numerous redactions that are not part of attachment B and I don't think there was anything nefarious about that. [00:10:09] Speaker 04: But what I would ask is that we be allowed to file under seal what we were actually provided by the government in response to the court's order because some of the things that are in attachment B were not provided to the defense. [00:10:27] Speaker 04: And I didn't realize this until, frankly, until I was preparing for an argument yesterday and there were things that I was like, I don't remember seeing this. [00:10:35] Speaker 04: So I went back and looked at what we had been provided. [00:10:39] Speaker 04: The stuff that was in there that we were not provided, and I understand that it's sealed, so I'm trying to be circumspect about it, but as far as specific things in the CS's file about specific instances where the CS represents that he's aware of other people in the state of Hawaii and elsewhere that are involved in large-scale methamphetamine trafficking, none of that was provided to us in terms of specifics or even sort of generalities. [00:11:08] Speaker 01: What does it take for us, I mean, you requested an income review and you received an income review by the trial court judge during trial, right? [00:11:17] Speaker 01: Yes. [00:11:17] Speaker 01: So what's the best rationale you have for us? [00:11:21] Speaker 01: taking a second look at the sealed materials? [00:11:25] Speaker 04: I think the first thing is that the court needs to look at those in order to determine whether what the court ordered disclosed was all of the Brady material in the file or whether there was stuff, additional things that should have been disclosed. [00:11:38] Speaker 01: Isn't that just pretty much relying on speculation that the district court didn't do its job right? [00:11:43] Speaker 01: We don't typically do that. [00:11:44] Speaker 01: I understood your argument to be, maybe you're making both arguments, I understood your argument as we got this material but we got it too late and we were prejudiced. [00:11:53] Speaker 01: And so now you're asking us to consider whether you should have received more? [00:11:58] Speaker 04: Yes. [00:11:59] Speaker 04: And the other thing is, obviously we didn't have access to the sealed case file. [00:12:04] Speaker 04: And what was disclosed to us based on the court's order that these additional documents be disclosed, like I said, is more redacted than what was [00:12:16] Speaker 04: provided an attachment B to this court. [00:12:19] Speaker 04: And I think those redactions are significant because it's not clear based on the district court's order. [00:12:25] Speaker 04: The district court order basically said, don't make any more redactions than are necessary. [00:12:29] Speaker 04: But I don't think the district court specifically said, okay, this is the information that you should be redacting from these documents. [00:12:36] Speaker 04: The government made that call. [00:12:39] Speaker 01: Did you want to say some time? [00:12:41] Speaker 04: I do, unless the court has any other questions. [00:12:44] Speaker 01: I don't think we do at this point. [00:12:45] Speaker 04: Thank you. [00:13:05] Speaker 00: Good morning, Your Honors. [00:13:06] Speaker 00: May it please the Court, Barbara Uecker for the United States. [00:13:09] Speaker 00: I'd like to start with the Brady Giglio issue, since that was the discussion that Your Honors just had. [00:13:14] Speaker 00: The District Court did not abuse its discretion in allowing the DEA's confidential source to testify in this case. [00:13:22] Speaker 00: Here the government had video and audio recordings of the defendant selling drugs to the CS. [00:13:27] Speaker 00: The government planned to admit those recordings through law enforcement witnesses. [00:13:31] Speaker 02: That wasn't because of concern about Brady or Giglio with respect to the CS, but it was because- Why did the government repeatedly represent to Mr. Gonzalez in the district court that it would not call the CS? [00:13:43] Speaker 00: Your honor, because the government in good faith believed that it could admit the videos, it could lay the foundation through law enforcement witnesses. [00:13:50] Speaker 00: The audio recording was a live recording that the DEA agents were listening to as it happened. [00:13:56] Speaker 00: And the DEA agents were the ones who hooked up the CS with the camera on his hat. [00:14:03] Speaker 00: So the government had every reason to believe that it could lay the foundation and make that happen. [00:14:08] Speaker 00: The district court [00:14:09] Speaker 00: There were many discussions in status conferences among the parties in the district court about this issue. [00:14:15] Speaker 00: So it came as really no surprise at the fact that the government ended up calling the CS because the court had made repeated warnings that if the government, you know, that she hadn't ruled yet on whether the government could admit the recordings without the CS. [00:14:32] Speaker 00: And so they were sort of reserving their options until it got to the point where it became clear [00:14:37] Speaker 00: To be safe, they decided to call the CS. [00:14:42] Speaker 00: So, Your Honor, I think it's important to focus on the actual material here and the timing. [00:14:49] Speaker 00: First, all of the material impeachment information was disclosed prior to trial beginning. [00:14:57] Speaker 00: There were additional cumulative disclosures, as your honors were, that were made after trial began, but all of it was made before the CS testified. [00:15:06] Speaker 01: I'm not sure that's consistent with the, last time I looked, with the U.S. [00:15:11] Speaker 01: Attorney's own internal manual. [00:15:13] Speaker 01: It's not just before trial. [00:15:14] Speaker 01: The problem is they're trying to plan their defense and strategize and do their own discovery. [00:15:20] Speaker 01: It's concerning. [00:15:21] Speaker 00: Yes, your honor, I hear that and in in consistent with our practices is to make sure that the defense has effective use of this material and it wasn't until. [00:15:30] Speaker 00: trial began that the government actually made the decision to call the CS. [00:15:35] Speaker 00: So there wasn't this idea that there was gamesmanship leading up. [00:15:39] Speaker 00: The government genuinely did not believe it would need to call the CS to testify. [00:15:45] Speaker 00: And there are several court conferences where the court is discussing this with the parties and understanding and in telling the defense, you're not entitled to this material because [00:15:54] Speaker 00: The CS is not going to testify at this point. [00:15:56] Speaker 01: And then there was a decision that the CS would have to testify. [00:15:59] Speaker 01: That's apparently what your team needed to put on its case, and I appreciate that. [00:16:05] Speaker 01: But apparently the file was refused, and not everything was produced, at least according to the district court. [00:16:13] Speaker 00: So your honor, I think it's important to keep in mind that the only there are 15 pages that the district court ordered to be produced after the in camera review and the defense, the defense is saying because the district court ordered it to be disclosed. [00:16:29] Speaker 00: That means it's Brady giglio. [00:16:30] Speaker 00: They don't point to a single piece of information in those disclosures that they can say had any impeachment value whatsoever. [00:16:38] Speaker 00: They had that material before the CS testified. [00:16:41] Speaker 00: They were also given opportunities to call Agent Delaney again. [00:16:45] Speaker 00: The 15 pages the district court ordered is the only material that they didn't have on cross of Agent Delaney. [00:16:59] Speaker 00: That's absolutely correct, Your Honor. [00:17:00] Speaker 00: They had an opportunity to recall him. [00:17:02] Speaker 00: The district court said, we can even postpone your cross if you'd like. [00:17:05] Speaker 00: They didn't do so. [00:17:07] Speaker 00: Or we can continue your cross at a later date. [00:17:09] Speaker 00: They didn't do so. [00:17:11] Speaker 00: And the question is whether they were able to have a substantial opportunity to use the evidence. [00:17:17] Speaker 00: And they did. [00:17:18] Speaker 00: And this case is very much like the Okla decision. [00:17:21] Speaker 00: I'm sure Your Honors refer to it as that decision. [00:17:24] Speaker 00: It's 94F4782. [00:17:26] Speaker 00: It has a longer case name. [00:17:28] Speaker 00: But in that case, the defense wasn't even able to have the opportunity to cross the witness where they got additional impeachment evidence. [00:17:38] Speaker 00: And the court there clearly recognized that there was no prejudice because they had other impeachment material which was cumulative. [00:17:48] Speaker 00: And so I think that case is really on point here and really important to keep in mind. [00:17:54] Speaker 01: It is close to mind, I promise, having authored it, but I just want to make sure that we're clear. [00:18:03] Speaker 01: I think Judge Fletcher has also weighed in on this, and maybe we all have. [00:18:06] Speaker 01: We take this very seriously. [00:18:08] Speaker 01: The U.S. [00:18:09] Speaker 01: Attorney has this obligation, as you know, to produce it and not to decide in its view whether something's going to be material in the end. [00:18:17] Speaker 01: The defendant needs to have that discovery and to be able to do [00:18:21] Speaker 01: They're strategizing and planning, and so the fact that it's produced mid-trial is concerning, and I am one of three up here, but in my view, the U.S. [00:18:30] Speaker 01: Attorney takes a very serious risk, and I think that the District Court conveyed as much. [00:18:35] Speaker 00: Yes, Your Honor, and I believe, and we hear that and share your concern and agree that we take our obligations very seriously. [00:18:44] Speaker 00: I think this was just a case that was very unique in terms of the posture and decision-making around calling the witness [00:18:50] Speaker 00: But ultimately, it was not an abuse of discretion for the district court to decide to let the government call this witness. [00:18:56] Speaker 00: This wasn't an out of the blue decision. [00:18:58] Speaker 00: This was something where there were several court conferences about this leading up to trial, several motions. [00:19:04] Speaker 01: Take your point. [00:19:05] Speaker 01: Could you speak to the other issue? [00:19:07] Speaker 01: I don't know what case law we have that goes to counsel's additional request that we look at. [00:19:14] Speaker 01: the under seal file because the district court did that once. [00:19:19] Speaker 01: Do we have case law that talks about us taking another look or under what circumstances we do that? [00:19:24] Speaker 00: Your Honor, I don't have a specific case law handy on that issue. [00:19:31] Speaker 00: If Your Honors have no further questions on the CS issue, I could turn. [00:19:37] Speaker 01: You're going to turn to what? [00:19:39] Speaker 00: I could turn to any issue that you'd like. [00:19:42] Speaker 01: I was just going to check with my colleagues whether they have any additional questions. [00:19:48] Speaker 00: Okay. [00:19:49] Speaker 00: Oh, and one additional thing I just wanted to add with respect to attachment B that Mr. Jerome was mentioning that the information that we shared with the court as part of the May 5th submission was different than what he got. [00:20:04] Speaker 00: That's because we removed redactions because the court ordered us to, this court- [00:20:13] Speaker 00: This court ordered us, yes, for our May 5th submission, this court ordered us to only apply redactions to third-party names and specific DEA index numbers. [00:20:23] Speaker 00: So we, in providing that copy to this court and to Mr. Jerome. [00:20:29] Speaker 02: I understand the argument that your opposing counsel is making is that because that information was not provided to the district court, it should be [00:20:39] Speaker 00: No, Your Honor, that was provided to the district court. [00:20:41] Speaker 00: The district court saw the complete unredacted CS file. [00:20:45] Speaker 00: So there were no redactions, perhaps maybe some index number. [00:20:51] Speaker 02: Because of our order, the defendant actually got more information than was previously provided, but the district court received all of the unredacted information. [00:21:03] Speaker 00: That's correct, Your Honor. [00:21:04] Speaker 00: So the district court received the entire CS file [00:21:07] Speaker 00: We did not apply redactions when we gave that to the court. [00:21:11] Speaker 00: There may have been some internal DEA redactions of index numbers and things of that nature, but. [00:21:18] Speaker 01: So earlier when counsel explained that there were some redactions when he said that ordered by the court, he meant this court. [00:21:24] Speaker 00: This court, yes. [00:21:25] Speaker 00: The Ninth Circuit specifically in its order to have us provide the CS file set and make it only very lightly redacted, and so we removed redactions that [00:21:37] Speaker 00: Previously had been on the materials that were produced to defense counsel And Yes, thank you so I'd like to just briefly touch on the Sentencing issue and just Just to go there first the the there was no procedural error here the district court and [00:22:04] Speaker 00: The sentencing judge made clear that she understood she had discretion to vary from the guidelines based on the methamphetamine purity policy and she simply declined to do so. [00:22:13] Speaker 00: It's very clear from her statement at sentencing. [00:22:16] Speaker 00: And that's based on a long line of cases starting from Kimbrough. [00:22:20] Speaker 00: She has that discretion. [00:22:22] Speaker 00: And the second, the district court did not abuse her discretion by imposing a significant downward variance in this case. [00:22:31] Speaker 00: And I just want to correct our brief and make it clear that the variance here was actually 112 months below the bottom end of the guidelines. [00:22:39] Speaker 00: I think our brief said 50 or so months. [00:22:42] Speaker 00: It was just a calculation issue, but it was actually a 112-month variance below the bottom end of the guidelines. [00:22:48] Speaker 00: And just one additional point I want to make on that, even if you used the generic methamphetamine to calculate his guidelines, and just in looking at the defendant's sentencing statement where they submitted that his base offense level would be 32 if you calculated it with the generic meth, he would still have received a downward variance of 18 months in terms of the sentence that was actually imposed. [00:23:17] Speaker 00: So I just wanted to make that point clear. [00:23:20] Speaker 00: If Your Honors have any other questions on that? [00:23:24] Speaker 01: I don't think we do. [00:23:24] Speaker 00: Okay, thank you. [00:23:25] Speaker 00: We just ask that you affirm. [00:23:37] Speaker ?: Thank you. [00:23:39] Speaker 02: Counsel, I have a question, and maybe you're going to address this because you didn't really talk about this in your opening remarks, but why did you reject the offer to recall Agent Delaney? [00:23:50] Speaker 04: That was one of the things I did want to discuss briefly. [00:23:54] Speaker 04: First of all, we were not given the opportunity to continue our cross-examination at a later date. [00:23:59] Speaker 04: We were given the opportunity to recall him. [00:24:02] Speaker 04: And as a strategic matter, I don't want to get too far into why that happened, but it's the difference between recalling an agent and potentially opening the door to additional information than being able to cross. [00:24:17] Speaker 04: The other thing I wanted to clear up this issue of the attachment B to the sealed file. [00:24:23] Speaker 04: Our point is not that the district court didn't review the entire unredacted file. [00:24:28] Speaker 04: I don't want this court to be misled into thinking that everything that's in attachment B is what we knew at trial because there are things in there that were redacted [00:24:37] Speaker 04: that are in attachment B, including the fact that in two of the things, there's a statement in 2021 and 2022 that the complaining witness doesn't have a driver's license, which the complaining witness testified about his traffic record in this case is a horrible traffic abstract. [00:24:54] Speaker 04: He's continuing to drive without a license throughout this case, which is fertile impeachment material for him. [00:24:59] Speaker 04: But the fact that the DEA knew that in 2021 and 2022 [00:25:03] Speaker 04: likely knew that he was continuing to compile these traffic incidents and still continued to use them as a cooperating source was relevant. [00:25:11] Speaker 04: The other thing that was redacted from there is information about the CS being involved or having knowledge of other methamphetamine traffickers in the islands, which part of our theory in this case is he got the meth that he claimed Mr. Gonzalez sold him from somebody else. [00:25:29] Speaker 04: Right? [00:25:29] Speaker 04: So if he has knowledge of other methamphetamine, specific knowledge of other methamphetamine traffickers, that goes to that defense. [00:25:37] Speaker 04: Right? [00:25:38] Speaker 04: He has other sources for this material. [00:25:40] Speaker 04: And we didn't know that at trial that there's specific references to him giving the DA information about other people from which he could receive multi-pound quantities of methamphetamine. [00:25:53] Speaker 04: The other thing is, I see I'm out of time, but the other thing is. [00:26:00] Speaker 04: The other thing is the government today still makes this idea that if they didn't call the CS as a witness at trial, they weren't obligated to disclose any of this information. [00:26:10] Speaker 04: I think that's simply not true. [00:26:12] Speaker 04: The CS in this case is essentially acting as an agent of the government. [00:26:16] Speaker 04: If you had a government agent who had a history, for example, of planting evidence on other defendants, and then the government says, well, we're not going to call him in this case, [00:26:27] Speaker 01: During the time when the government was taking the position that it didn't intend to call him, I think the trial court left that as an open issue. [00:26:38] Speaker 01: I don't think there was a ruling, is that right? [00:26:40] Speaker 04: I don't know if there was a ruling. [00:26:42] Speaker 04: The district court certainly says at various times, well, if you do call him, there's all sorts of things that you're going to have to disclose. [00:26:49] Speaker 04: And if you don't do that by June 14th, I'm not going to let you call him as a witness. [00:26:53] Speaker 04: And then they don't do it by June 14th and the court allows them to call him, which I think is an abusive discretion. [00:27:01] Speaker 01: I think we've got your arguments, both of you. [00:27:03] Speaker 01: Thank you for your careful preparation and patience with our questions. [00:27:07] Speaker 01: We'll take that under advisement and move on to the final case on the calendar.