Legal Case Summary

We are ready. Yeah, please the court. Before I begin I would like to say there's no mountain North Carolina lawyer. It's nice to see somebody Tarheal from the Newtrial. Mr. Flores in this case is entitled to a new trial because the trial court denied his motion for a new trial based upon the Law. The court has been in the court for a fair of the government to disclose their star witnesses mental health records. Brady and his progeny certainly required the disclosure of the mental health records that were not disclosed in this case for a variety of reasons. Certainly this is impeachment evidence that was that could have been used and should have been used to impeach Mr. Kennedy at trial. The government in his brief argues a couple things about what makes two points essentially as to why these materials shouldn't have been disclosed they contest the disclosure part of it first of all. The first argument the government makes is that these records were available from other sources. My response to that is I think sometimes folks who work in the government forget how easy it is for them to get records and how difficult it can be for private folks to get records. But that wasn't the case here. I mean you had subpoenaed the records they were in fact made available. It was a screw up here. Certainly and I would just point out that the defense counsel at trial went through the hip of steps and issued a subpoena asked for a court order and did the things

. There was no other way to get these records other than the what she what she actually did. But did not follow up before and simply just say well I issued a subpoena did you ever send them. Which would it yield the answer yes we sent them. Well my response to that is that is that the government sit in their brief says well you know the the defendant didn't show up a calendar call and didn't defense counsel didn't do these things of course the government is not in a terribly good position to claim negligence when they didn't simply open a nonflip in their own case so. And that's I mean but we don't part I mean what it's not very helpful to parse blame that the one of the issues from Brady purposes is was the evidence admissible from another source certainly and it appears here that the information was made available in response to the sponsor the subpoena. And just. Well it just wasn't it wasn't delivered to the defendant or the court actually I think my recollection is the court order required a disclosure to the trial court so again I would say that under HIPAA that that procedure was what's required under the regulations and that it goes to the court and then the court has to determine whether it's it gets disclosed to the defendant the defendant is not in a position to just get disclosure. Without some action by the court. That's that's not the way that that HIPAA works. They can issue a subpoena for it but the provider is actually prohibited from just from disclosing that information without a court order so it really wasn't available from from another from the actual provider without court. The important thing about this is that I think that florist filed an exparte motion to subpoena records from the treatment center which the court granted. That's what I understand so the government wouldn't even have known initially that information was forthcoming whereas florist is council would have. I'm not sure that I understand clearly clear about that because florist florist sardis subpoena. The court the order specified that the records were to be brought to the court and this took place as best I can tell without the government's knowledge it was an exparte motion. But I can't it's not clear from the record to me whether it was an exparte order in other words the motion may have been exparte but the order may have been in the back to the record. Okay so I can't I can't really answer the court's question

. Okay but at least council was aware that the records would be coming to the court and could have also asked the court without the excusing government screw up. Well I suppose that that that's true. There is some my recollection and this is a bit fuzzy but in the transcript there is some discussion. On the first day of trial about about the records although they had what makes that confusing is that they Mr. Kennedy's council had actually given some of the records apparently to the parties to. So I mean as on behalf of the defendant I think we can all you know my position certainly would be that yes this was there was negligence here and it and there's nothing in the record that supports you know that there was anything intentional. I mean I certainly wouldn't wouldn't be arguing that on anybody. Right right and it you know I think the court's characterization that this is just a place where several people dropped the ball perhaps. But at the end of the day it's Mr. Flores who goes on trial without the availability of these records and at the end of the trial when we find out that these records were out there. Then we get sort of an a sense of a chance to remedy this problem and this is the issue I think that's before the court did the trial court abuses discretion and denies the motion for. Retrial and essentially I my understanding of the court's order is that it didn't really was an emotion and retrial. There was well there was there was a series of motions I think that the record reflects that the defendant filed a motion to dismiss. And then with prejudice I think when the defendant fence council initially believed or thought that this was intentional when the government responded that it was an intentional and then asked for the government actually filed a motion to. To dismiss without prejudice and then defendant asked for the objective to that motion and then they filed a motion for new trial. So it's a complicated sort of tortured history about the procedural what fallout if you will after the trials over

. My primary argument though is that is that the failure to disclose here was prejudicial to the defendant regardless of where the fall lies. And college versus Whitley talks about in circumstances where information is not disclosed the standard being the reasonable probability that it would have affected the outcome of the trial. Didn't Kennedy testify on direct that he had a serious long term cocaine addiction that it affected his memory that he was receiving treatment including medication. That he was testifying because he'd been caught and didn't want to go to jail for a long time. All those things are exactly true. And to what would you what would the medical records have added in your view? Two things. The first thing is that when Mr. Kennedy testified about those things he portrayed his treatment as being what I would what I've characterized in the brief a sort of run of the mill substance abuse anxiety and depression. What the treatment records show is that he actually had a much more serious mental health issue. In fact at one point in time claiming to suffer from auditory hallucinations. That's a far different matter. I would submit to the court than simply saying I was taking I was receiving mental health treatment and taking medication. That's the difference between somebody who certainly may have some mental health issues as opposed to somebody who is admittedly at least at some point and to not in touch with reality or at least having a difficult time perceiving reality. And really when we talk about the credibility of a witness at trial and you know there's two there's two components to that the first component is their ability to sort of understand and take in the information that they're that they're that they've witnessed. And then the second part is their testimony of trial their ability to recall that at trial or their motivation to recall it at trial. Really the the and and again I think it was good a good job of impeaching the witness by the sense council with what she had

. She did a good job of talking about getting him to admit things that went to his credibility and his recall at trial. This is an issue that really goes to his ability to perceive that those facts and his reliability as a witness. So the fact that he had suffered from hallucinations is a much bigger deal in my mind as opposed to somebody who had just been receiving mental health treatment and or was a cocaine addict for example. The second part of that the second point I would make is this is at least if not more important than the first point is he lied about. He lied about his mental health treatment he would directly ask a question by the US attorney and said well you didn't have any hallucinations or anything like that and he says no no nothing like that. Well if the defense council had been able to have the records in her possession at the time that he that he asked that question. That's the difference between having having a witness on the stand to may have some credibility problems and a witness actually sat there and lied to a jury panel in the courtroom. Spence off you mentioned this issue of the additional information about hallucinations it was a rather as I recall rather Kurt short statement in the records mentioning some indication of auditory hallucinations and that's the only thing that I recall in these records. Why isn't the equally plausible explanation. Is that the witness simply forgot and if there really isn't anything more about that particular symptom how does that change the calculus here. Well I would submit your honor that it's more than just the isolated sort of auditory hallucination he also has this episode where he describes himself as having a nervous breakdown where he's found naked in the front yard. He did he he certainly omitted that he wasn't asked about well he was asked about a sort of general question by the prosecutor he's not a medical. Well but he but the the I think the court can look very clearly at the sort of sequence of questions the questions by the prosecutor are asking him you know well this is basically this is just you got some mental health treatment but the severity of it is is really the focus of it you didn't have hallucinations it wasn't more serious than that and actually the records demonstrate that perhaps it was more serious than that and he admits that I understand the courts question about well he could have just forgot about the hallucinations I would submit it would be very difficult for him to forgotten about. This episode where he was how naked in his front yard that well maybe so but describing it in medical terms and attempting to pin a diagnosis on it from a layman's perspective might not be possible well but and that may well be true but the what's the defendant's remedy is that he's an injury trial and he has a defense lawyer that can follow up on ask questions about that but the defense lawyer can't do that if the defense lawyer doesn't have the information that that should have been disclosed to councilmember. I think I think I would have been in order to do that I've run past my my time here I think perhaps I haven't thank you apologize and I think that the follow up on those two points too the reason why the the trial courts order would content we would contend is an abuse of questions because it doesn't actually address these particular issues at all it sort of talks about well this is cumulative it's more impeachment this is much more significant in impeachment evidence than then the impeachment that was done at trial it really does go to the witnesses not only ability to perceive facts and I've talked aside of the cases from around the country which talk about the difference between somebody who can perceive facts and correctly and not perceive facts correctly and then then what I would I would continue to characterize as being at least a statement of a mission as if not a statement of actual falsity about what the scope of his mental health condition was and treatment was. So the trial court really doesn't analyze that no one really argues it the way I think that that is offended it should have been argued but that is just an issue that doesn't get addressed excuse me

. Council received the new beginnings material the morning of trial which council the full are you talking about the government council no force is council. Am I not remembering that correctly she received the defendant actually and defendants council actually received the full records once the jury was out they come back on I think it's a Thursday morning after the jury has been instructed. But I thought that she had received that the council had received some new beginnings materials beginning actually my recollection is is that some point prior to trial. Mr. Kennedy's attorney in response in response to the rule 11 information had disclosed both through the government and the defendant a portion of the records made and made information available to the government which the government. Correct shared with the defendant right apparently that was the information that was that came from Kennedy's council was given everybody is my understanding however it didn't include some of the what I would consider to be the more serious issues that are related in the actual matter. The auditory hallucination involved music playing I believe that the that's what I sleep he would recall mute he would hear music playing. That that sounds similar to what what my recollection is. Thank you the last issue the second issue portion on brief is simply an objection to the violation of the defendant six member rights have the jury actually find drug quantity which I would submit to the court is the trend that we see from the United States Supreme Court. I understand there's no cases that certainly would be against the case law in this district in this circuit. But you have preserved the error. Yes ma'am. Thank you. Thank you very much. And you have some time on our bottom. Miss Christine

. May I please the court able Christine on behalf of the United States and yes your honor. In this case the district court correctly denied defendant's motions for mistrial and neutral because there was no Brady violation in this case the defendant failed to show that the government suppressed the evidence and as this court has previously held information that is available to the defendant does not constitute a Brady violation. The Supreme Court made clear that the Brady doctrine applies to information that is known to the prosecution but unknown to the defense and that is not this case in this case the defendant had the information readily available to him from an independent source. The record shows that the defendant learned about the mental health records at least two weeks before trial. The defendant served a subpoena on new beginnings a week before trial. Defident did not follow up on his subpoena to make sure that new beginnings complied with the court's order. But even with that the court rule that defendant was entitled to those records the day of trial before trial began. A reasonably diligent defendant would have checked with new beginnings once he had that order in hand and checked make sure that he had all of the records. So in this case the defendant could have discovered the missing information before trial and certainly before Kennedy testify. So he was not entitled to rely on the representation that she had received the records. No, Your Honor and any reliance would not have been reasonable because in this case the prosecutor made clear when the prosecutor raised the issue with the court the prosecutor explained that he had obtained records from Kennedy's attorney. Yes Judge Duckie and he explained and that he was producing what he had. He explained that those records came from Kennedy's attorney's records. Now certainly in this case and as the court can see from the record at 661 and 663 new beginnings internal emails show that even though Kennedy's attorney was authorized to receive any and all information about his men. And he was talking about the mental health records. It was new beginnings that gave him a subset of the file

. Well, we know that now but the party didn't know that then and that's exactly right. But again, if back to Your Honor's question, the prosecutor made clear that he was producing what he had. But he did not represent that he had gotten those records from new beginnings and he did not represent that it was a complete file. He did explain to the court that a package had been delivered to an assistant US attorney. He also explained to the court that he did not yet have that package. But he had obtained what he thought was a duplicate set from Kennedy's attorney. But he did make clear that that was not coming directly from new beginnings. There was there was no indication in the record that the government had a subpoena or that the government was planning on getting those records. And so there is no reasonable reliance here on what the prosecutor said. But again, even if the prosecutor thought that he had a duplicate set, a reasonably diligent defendant armed with a subpoena, armed with the court's order that he was entitled to those records before trial began. Would have checked make sure that what he had was a complete file. Well, you know, when you think about what the prosecutor did here and it doesn't appear to be an default on the part of the prosecutor here. It was quite reasonable what he was assuming. And I think the record shows he thought he had a thought he had given him everything and then he went back and he saw this big package. He looked and he saw that it was much thicker than what he had given. At that point, he realized he hadn't given all of the records

. That wasn't all of the records. But even given all this here, it seems like the remedies pretty simple. The government was asking was acquiescent. And I think in saying a new trial without prejudice. The defendant seemed to want to do it. We're prejudice, but as I understand it changed the mind and says, okay, we'll just have a new trial. But the judge wouldn't do it. If I may respectfully disagree, Your Honor, the record shows that the government did in fact make an oral motion for mistrial without prejudice. But the record also shows that that motion was made in response to the defendant's argument of bad faith on the part of the government. The defendant raised the issue of mistrial first and defendant claimed that mistrial was warranted because of the government's bad faith, which would have precluded the government from being able to retry the case under double jeopardy. The government in response to that indicated that if the court was inclined to consider a mistrial, that it be without prejudice because the government argued that there was no bad faith on the government's part in this case. But the government... That seems pretty evident. There's no bad faith

. That seems evident in the record and maybe even the defendant had come around to that in terms of trying to prove that. So then that just left everybody asking for mistrial and then without prejudice. But the trial court wouldn't do it. Even the government felt mistrial would be at least an appropriate remedy or one they could live with. I mean, you just try to case again. You got everybody there. Well, you're under the government only only suggested that remedy if the court was inclined to grant a mistrial. The government consistently argued that there was no Brady violation. Consistently argued that... Just to that. And as you say inclined to grant a mistrial, you suggested it because you thought the government could... The court could find bad faith

. But the base, the type of mistrial you were asking would be not based on bad faith. And Judge Wynn, that again went to the issue of whether there was double jeopardy. That claim, that issue was not before this court. Although defendant argued it in the district court, he abandoned that claim on appeal. So we are left with rather not the court was correct in... There was no break. Well, it was not correct in what it ultimately did. But it just odd that when you have both parties that seem okay, have a mistrial and the only thing is whether it's with prejudice. And then it seems like the defendant comes around and says it's without prejudice too. At that point, in a day, he says, okay, we won't have this go up to the full circuit. Say those judges some time on this, we'll go ahead and try this again. You won't have that issue. But it goes to go forward. That's my point. Did the defendant ever say agree to without prejudice? No, the defendant never agreed to it without prejudice. And that was the issue. But now make sure I understood what defendant's counsel just represented on that. I thought that he said there was a motion to dismiss with prejudice. And then after they determined that is what the circumstances were, they then decided to go with the motion for a new trial. That was when I asked about the retrial because he said retrial. That is not my recollection of the record. Your Honor, my recollection of the record is that the defense immediately argued bad faith on the part of the government. It was clear from the record that there just wasn't enough information as to what happened at that moment in time. I don't think that was the purpose of the thing. You can go ahead with what I've just was curious in terms of both sides being there, things like you and agreement and judge just wouldn't do it. And I wouldn't know. Defendant is not a defendant is not appealing that ruling. The defendant is appealing the motions that were post trial. Mr. Christine, back to your earlier point about the lack of a Brady violation

. Did the defendant ever say agree to without prejudice? No, the defendant never agreed to it without prejudice. And that was the issue. But now make sure I understood what defendant's counsel just represented on that. I thought that he said there was a motion to dismiss with prejudice. And then after they determined that is what the circumstances were, they then decided to go with the motion for a new trial. That was when I asked about the retrial because he said retrial. That is not my recollection of the record. Your Honor, my recollection of the record is that the defense immediately argued bad faith on the part of the government. It was clear from the record that there just wasn't enough information as to what happened at that moment in time. I don't think that was the purpose of the thing. You can go ahead with what I've just was curious in terms of both sides being there, things like you and agreement and judge just wouldn't do it. And I wouldn't know. Defendant is not a defendant is not appealing that ruling. The defendant is appealing the motions that were post trial. Mr. Christine, back to your earlier point about the lack of a Brady violation. So I understand the government's position. Your position is not that the government didn't have these full records in its possession because you obviously did another prosecutor had the records. They just didn't know that they had been subpoenaed in response to a defense request, but that the defense had equal access to these records. And therefore that's why there's no Brady violation. Is that fair? Certainly, certainly that's the first part of the government's argument. Yes, Your Honor. In this case, at some point, the records did come into the government's possession. And that was the day before trial. But even after the records came into the government's possession, defendant continued to have access to those records because new beginnings continued to be the source of the information. And so even though the government did at some point get position of the entire, excuse me, get possession of the entire file, defendant continued to have ready access to those records knew about the records and certainly could have as the government stated in its brief, could have checked with new beginnings to ensure that that he had the entire file. The second part of the government's argument is that even, even under this, even without the suppression element, defendant here felt to show that the information was material. First, the defendant felt to show that the information was not cumulative. And as was discussed earlier, certainly in this case, the defendant was able to attack Kennedy's perception ability to perceive events and Kennedy's motive to lie. First, in attacking his ability to perceive events, there was other evidence of mental health issues. And he did use that evidence of mental health issues to attack Kennedy's ability to perceive events. He used the fact that he had severe cocaine addiction, that he had memory problems for a long period of time, and that he was being treated for anxiety and depression

. So I understand the government's position. Your position is not that the government didn't have these full records in its possession because you obviously did another prosecutor had the records. They just didn't know that they had been subpoenaed in response to a defense request, but that the defense had equal access to these records. And therefore that's why there's no Brady violation. Is that fair? Certainly, certainly that's the first part of the government's argument. Yes, Your Honor. In this case, at some point, the records did come into the government's possession. And that was the day before trial. But even after the records came into the government's possession, defendant continued to have access to those records because new beginnings continued to be the source of the information. And so even though the government did at some point get position of the entire, excuse me, get possession of the entire file, defendant continued to have ready access to those records knew about the records and certainly could have as the government stated in its brief, could have checked with new beginnings to ensure that that he had the entire file. The second part of the government's argument is that even, even under this, even without the suppression element, defendant here felt to show that the information was material. First, the defendant felt to show that the information was not cumulative. And as was discussed earlier, certainly in this case, the defendant was able to attack Kennedy's perception ability to perceive events and Kennedy's motive to lie. First, in attacking his ability to perceive events, there was other evidence of mental health issues. And he did use that evidence of mental health issues to attack Kennedy's ability to perceive events. He used the fact that he had severe cocaine addiction, that he had memory problems for a long period of time, and that he was being treated for anxiety and depression. His ability to attack his motive to lie, he had ample other evidence. He had his cooperation with the government. He had his plea agreement with the government. He had his prior drug dealings. He had the fact that Kennedy was caught with two kilograms of cocaine. He had the fact that Kennedy was facing a 10-year mandatory sentence. What about the fact that he was, at least according to the defense view of things, was caught in a lie in the very court proceedings in which he was testifying. That's pretty compelling, powerful evidence, which I don't think can be properly characterized as cumulative. And no, your honor, Judge Diaz, when you asked the earlier question as to how much, how many questions were asked about this? You're right, there was one question. And that question was couched in a number of symptoms. So there was symptom A, B, C, hallucination, and D. The record doesn't indicate whether or not he understood. He answered no to all of them. And perhaps the question was not phrased very well, but he answered no to all of them. He was asked separately about hallucinations. And again, he may have a different view of what, he may not have understood what the prosecutor meant by that

. His ability to attack his motive to lie, he had ample other evidence. He had his cooperation with the government. He had his plea agreement with the government. He had his prior drug dealings. He had the fact that Kennedy was caught with two kilograms of cocaine. He had the fact that Kennedy was facing a 10-year mandatory sentence. What about the fact that he was, at least according to the defense view of things, was caught in a lie in the very court proceedings in which he was testifying. That's pretty compelling, powerful evidence, which I don't think can be properly characterized as cumulative. And no, your honor, Judge Diaz, when you asked the earlier question as to how much, how many questions were asked about this? You're right, there was one question. And that question was couched in a number of symptoms. So there was symptom A, B, C, hallucination, and D. The record doesn't indicate whether or not he understood. He answered no to all of them. And perhaps the question was not phrased very well, but he answered no to all of them. He was asked separately about hallucinations. And again, he may have a different view of what, he may not have understood what the prosecutor meant by that. But it's clear that the defense would have had the opportunity to indicate, well, you said this, but here's these records that suggest otherwise. In my understanding is that it was one question and the question was couched. It wasn't simply, did you experience hallucinations? It was, did you experience this symptom, this symptom hallucinations in that symptom? And he answered no, simply no. And certainly that answer was not accurate asked to hallucinations, but even if that missing information, even if that piece of it further tainted his credibility, there was overwhelming evidence of defendants guilt. In this case, and certainly in this case, the jury had poolines description of the entire drug deals and how they worked. The jury had phone records that trace that last drug deal from beginning to end, including multiple phone calls between defendant and Kennedy. The jury had photographs of the seized cocaine. The jury had agent Cohen's testimony instructing Kennedy to call his supplier to come and pick up the drug money. The jury had defendants own statements during that last phone call, arranging to pick up the money in the same place in one hour in the truck in the toolbox indicating frequent transactions of that type. The jury had defendants actions and arriving at Kennedy's residence and driving around the back of the residence and parking behind the truck where the money was supposed to be and in walking towards the truck at the time that he was arrested. The jury had photographs of defendant at Kennedy's residence. The jury had agent Cohen's testimony about verifying through the phone, the cell phone that that defendant was the supplier that Kennedy called in that last phone call. The jury had Kennedy's positive ID of defendant's photograph as his supplier during a show up at the time that defendant was arrested. So there was overwhelming evidence here of defendant's guilt. And as far as the sentencing is concerned, defendant knowingly and voluntarily waived his his his the claim that he now makes on appeal. And certainly in this case, defendant objected to any drug quantities being submitted to the jury at trial, even after the court explained that the law required that at least threshold quantities be submitted to the jury, defendant emphatically stated that he wanted no quantities to the jury before so so defendant has waived his claim

. But it's clear that the defense would have had the opportunity to indicate, well, you said this, but here's these records that suggest otherwise. In my understanding is that it was one question and the question was couched. It wasn't simply, did you experience hallucinations? It was, did you experience this symptom, this symptom hallucinations in that symptom? And he answered no, simply no. And certainly that answer was not accurate asked to hallucinations, but even if that missing information, even if that piece of it further tainted his credibility, there was overwhelming evidence of defendants guilt. In this case, and certainly in this case, the jury had poolines description of the entire drug deals and how they worked. The jury had phone records that trace that last drug deal from beginning to end, including multiple phone calls between defendant and Kennedy. The jury had photographs of the seized cocaine. The jury had agent Cohen's testimony instructing Kennedy to call his supplier to come and pick up the drug money. The jury had defendants own statements during that last phone call, arranging to pick up the money in the same place in one hour in the truck in the toolbox indicating frequent transactions of that type. The jury had defendants actions and arriving at Kennedy's residence and driving around the back of the residence and parking behind the truck where the money was supposed to be and in walking towards the truck at the time that he was arrested. The jury had photographs of defendant at Kennedy's residence. The jury had agent Cohen's testimony about verifying through the phone, the cell phone that that defendant was the supplier that Kennedy called in that last phone call. The jury had Kennedy's positive ID of defendant's photograph as his supplier during a show up at the time that defendant was arrested. So there was overwhelming evidence here of defendant's guilt. And as far as the sentencing is concerned, defendant knowingly and voluntarily waived his his his the claim that he now makes on appeal. And certainly in this case, defendant objected to any drug quantities being submitted to the jury at trial, even after the court explained that the law required that at least threshold quantities be submitted to the jury, defendant emphatically stated that he wanted no quantities to the jury before so so defendant has waived his claim. And if there are no further questions in the government, ask that the court affirm the sentence and conviction in this case and thanks the court. Thank you. May I please the court, I'll be brief and just clarify a couple points. One is the question is that judge, when asked about the sort of sequence of who made what motion and what order. It's correct to say that there was an oral motion for mistrial with prejudice that was made by the defendant. The government then made an oral motion without for mistrial without prejudice. The government then filed a written motion asking for to deny. Well, it was it was a written motion and opposition to the defendant's motion for mist oral motion for mistrial. And then the defendant on page 817 filed a reply to the government's motion in which on page 820, the government, the defendant argued that essentially that the government, the government mistated the rule, the standard for under rule 33 for a new trial. Although it's take some parsing to get there, there is certainly a suggestion in that reply that a new trial would be an appropriate remedy. I would note though that it's in the section D that the defendant also says, oh, and by the way, judge, you can also just dismiss it with prejudice. But I think if you read the totality of that motion and reply again, it certainly suggests that neutral, a new trial without prejudice is is one of the remedies that the defendant would. Just fall back at something real quick for me, and that is just a defendant made an expo a motion or at least action before the court to subpoena these records. Let's understand and the court granted that understand and at that point, what is the responsibility of the defendant? I mean, the court and the records ought to be delivered to the court and the defendant makes the inquiry, the records have not been delivered to the court. So at that point, is that not some remedy that the defendant would possess the, you know, because you've got to subpoena, spin a went to new beginnings. And in some indication, they've not complied

. And if there are no further questions in the government, ask that the court affirm the sentence and conviction in this case and thanks the court. Thank you. May I please the court, I'll be brief and just clarify a couple points. One is the question is that judge, when asked about the sort of sequence of who made what motion and what order. It's correct to say that there was an oral motion for mistrial with prejudice that was made by the defendant. The government then made an oral motion without for mistrial without prejudice. The government then filed a written motion asking for to deny. Well, it was it was a written motion and opposition to the defendant's motion for mist oral motion for mistrial. And then the defendant on page 817 filed a reply to the government's motion in which on page 820, the government, the defendant argued that essentially that the government, the government mistated the rule, the standard for under rule 33 for a new trial. Although it's take some parsing to get there, there is certainly a suggestion in that reply that a new trial would be an appropriate remedy. I would note though that it's in the section D that the defendant also says, oh, and by the way, judge, you can also just dismiss it with prejudice. But I think if you read the totality of that motion and reply again, it certainly suggests that neutral, a new trial without prejudice is is one of the remedies that the defendant would. Just fall back at something real quick for me, and that is just a defendant made an expo a motion or at least action before the court to subpoena these records. Let's understand and the court granted that understand and at that point, what is the responsibility of the defendant? I mean, the court and the records ought to be delivered to the court and the defendant makes the inquiry, the records have not been delivered to the court. So at that point, is that not some remedy that the defendant would possess the, you know, because you've got to subpoena, spin a went to new beginnings. And in some indication, they've not complied. So are you powerless then to just say, well, they didn't pay off. So, you know, or the court order in their attention. So we're just going to go to go to trial. Well, certainly the defendant could go back to the court and say, you know, they didn't they didn't want to win you. You went to trial with valor. Well, you knew they were there and you knew to have these records and you about to go to trial and you know you've got this court order telling them to give you these records. But it appears that though they haven't. Well, I think that my read of what happened here is that the defense counsel didn't do that because of the fact when she shows up the first day for trial. Well, you know, there's this discussion about what we you have all the records that were given records that were other counsel had correct. If you're going to accept that, then that's, you know, that's not new beginning. I mean, you got to got it. What you entitled again, the records from new beginning. And what you chose to accept were these records that had been supplied by to the prosecutor who didn't gave them to you. You didn't use what was available and says, no, you want to we want the records from new beginning because it could have been changed and they could have happened to them. You want to have the records. But why didn't you do it? I mean, and it just seems logical

. So are you powerless then to just say, well, they didn't pay off. So, you know, or the court order in their attention. So we're just going to go to go to trial. Well, certainly the defendant could go back to the court and say, you know, they didn't they didn't want to win you. You went to trial with valor. Well, you knew they were there and you knew to have these records and you about to go to trial and you know you've got this court order telling them to give you these records. But it appears that though they haven't. Well, I think that my read of what happened here is that the defense counsel didn't do that because of the fact when she shows up the first day for trial. Well, you know, there's this discussion about what we you have all the records that were given records that were other counsel had correct. If you're going to accept that, then that's, you know, that's not new beginning. I mean, you got to got it. What you entitled again, the records from new beginning. And what you chose to accept were these records that had been supplied by to the prosecutor who didn't gave them to you. You didn't use what was available and says, no, you want to we want the records from new beginning because it could have been changed and they could have happened to them. You want to have the records. But why didn't you do it? I mean, and it just seems logical. I mean, we actually had a case sort of similar to this in which the old question was does the hospital have to turn over these records and how do you do it? It was a different context, of course, but that's a being is pretty powerful stuff. A court order to a facility means turn over their records and the failure to do so, the remedy can be pretty quick. Well, and I don't have a good answer for the court about why defense counsel didn't follow up and do more to ensure that that creates the problem on the alternate source. That judge Duncan alluded to earlier and of course, it seemed to have some initial concern about how do you get over that? I mean, how do we come in and say there's a breeding violation when all you had to do was just you've already started the process. You didn't go up and open court says give it to and everybody knows about it and the prosecutor get him. You went in exparte and got it. What I would say want to blame the government when it comes to them in an envelope, I assume it doesn't say on that envelope these are his medical mental records when they'll help record that doesn't say that probably for obvious reasons. So I don't know what it is. And they're not expecting anything for, but you complain you didn't get it all. And yet you could have gotten it all. I'd say I'm out of time if I may have chance to respond. The problem with that is that is that they're supposed to go to the court. So to some extent the defendant can only know if that that hasn't been complied with if they are advised by the court. I mean, I understand the defendant could have defense counsel could have come in and said did the court get all these records. I think that got lost in the wash of we discussed when they walked in and started talking about these are the mental health records and certainly the ball got dropped here on a number of occasions, but I don't I don't think that that necessarily I'm sure that it doesn't mean though that this is this somehow is an alternative source. It was all going to come through the same conduit the question of whether who dropped the ball at what point in time still resulted in a negligent failure to disclose the defendant

. I mean, we actually had a case sort of similar to this in which the old question was does the hospital have to turn over these records and how do you do it? It was a different context, of course, but that's a being is pretty powerful stuff. A court order to a facility means turn over their records and the failure to do so, the remedy can be pretty quick. Well, and I don't have a good answer for the court about why defense counsel didn't follow up and do more to ensure that that creates the problem on the alternate source. That judge Duncan alluded to earlier and of course, it seemed to have some initial concern about how do you get over that? I mean, how do we come in and say there's a breeding violation when all you had to do was just you've already started the process. You didn't go up and open court says give it to and everybody knows about it and the prosecutor get him. You went in exparte and got it. What I would say want to blame the government when it comes to them in an envelope, I assume it doesn't say on that envelope these are his medical mental records when they'll help record that doesn't say that probably for obvious reasons. So I don't know what it is. And they're not expecting anything for, but you complain you didn't get it all. And yet you could have gotten it all. I'd say I'm out of time if I may have chance to respond. The problem with that is that is that they're supposed to go to the court. So to some extent the defendant can only know if that that hasn't been complied with if they are advised by the court. I mean, I understand the defendant could have defense counsel could have come in and said did the court get all these records. I think that got lost in the wash of we discussed when they walked in and started talking about these are the mental health records and certainly the ball got dropped here on a number of occasions, but I don't I don't think that that necessarily I'm sure that it doesn't mean though that this is this somehow is an alternative source. It was all going to come through the same conduit the question of whether who dropped the ball at what point in time still resulted in a negligent failure to disclose the defendant. There was no other thing the defendant could have done than do what they did other than show up at trial and say, what negligent failure to ask. Well, and perhaps that's true, but the fact is the government did get the records and didn't and didn't disclose them. And I mean, they didn't know they were coming. Well, I'm not sure that they didn't know they were coming. That's not clear from the from the order, but. I asked one more question. The question to the witness with respect to hallucinations. My recollection is that that question was asked in isolation. He was specifically asked about. The hallucinations separately. Is that your recollection? Actually, I found it in the record and it was a bit of a compound. My recollection is it's a series of questions that are asking a rather sort of compound way. I would agree with it was with Miss Christine. It wasn't a it wasn't a very well articulated series of questions. It included bipolar and. That's correct

. There was no other thing the defendant could have done than do what they did other than show up at trial and say, what negligent failure to ask. Well, and perhaps that's true, but the fact is the government did get the records and didn't and didn't disclose them. And I mean, they didn't know they were coming. Well, I'm not sure that they didn't know they were coming. That's not clear from the from the order, but. I asked one more question. The question to the witness with respect to hallucinations. My recollection is that that question was asked in isolation. He was specifically asked about. The hallucinations separately. Is that your recollection? Actually, I found it in the record and it was a bit of a compound. My recollection is it's a series of questions that are asking a rather sort of compound way. I would agree with it was with Miss Christine. It wasn't a it wasn't a very well articulated series of questions. It included bipolar and. That's correct. The part of the point is that you had the records you would have. You would have died into that aspect of it. Did you just tell us it was hallucination? I mean, that's part of it. I think it seems great a problem. You got to swear initially I was the alternate source. I'm just not feeling that right now. Maybe I will. But we'll see. Thank you, honest. Thank you, council.

We are ready. Yeah, please the court. Before I begin I would like to say there's no mountain North Carolina lawyer. It's nice to see somebody Tarheal from the Newtrial. Mr. Flores in this case is entitled to a new trial because the trial court denied his motion for a new trial based upon the Law. The court has been in the court for a fair of the government to disclose their star witnesses mental health records. Brady and his progeny certainly required the disclosure of the mental health records that were not disclosed in this case for a variety of reasons. Certainly this is impeachment evidence that was that could have been used and should have been used to impeach Mr. Kennedy at trial. The government in his brief argues a couple things about what makes two points essentially as to why these materials shouldn't have been disclosed they contest the disclosure part of it first of all. The first argument the government makes is that these records were available from other sources. My response to that is I think sometimes folks who work in the government forget how easy it is for them to get records and how difficult it can be for private folks to get records. But that wasn't the case here. I mean you had subpoenaed the records they were in fact made available. It was a screw up here. Certainly and I would just point out that the defense counsel at trial went through the hip of steps and issued a subpoena asked for a court order and did the things. There was no other way to get these records other than the what she what she actually did. But did not follow up before and simply just say well I issued a subpoena did you ever send them. Which would it yield the answer yes we sent them. Well my response to that is that is that the government sit in their brief says well you know the the defendant didn't show up a calendar call and didn't defense counsel didn't do these things of course the government is not in a terribly good position to claim negligence when they didn't simply open a nonflip in their own case so. And that's I mean but we don't part I mean what it's not very helpful to parse blame that the one of the issues from Brady purposes is was the evidence admissible from another source certainly and it appears here that the information was made available in response to the sponsor the subpoena. And just. Well it just wasn't it wasn't delivered to the defendant or the court actually I think my recollection is the court order required a disclosure to the trial court so again I would say that under HIPAA that that procedure was what's required under the regulations and that it goes to the court and then the court has to determine whether it's it gets disclosed to the defendant the defendant is not in a position to just get disclosure. Without some action by the court. That's that's not the way that that HIPAA works. They can issue a subpoena for it but the provider is actually prohibited from just from disclosing that information without a court order so it really wasn't available from from another from the actual provider without court. The important thing about this is that I think that florist filed an exparte motion to subpoena records from the treatment center which the court granted. That's what I understand so the government wouldn't even have known initially that information was forthcoming whereas florist is council would have. I'm not sure that I understand clearly clear about that because florist florist sardis subpoena. The court the order specified that the records were to be brought to the court and this took place as best I can tell without the government's knowledge it was an exparte motion. But I can't it's not clear from the record to me whether it was an exparte order in other words the motion may have been exparte but the order may have been in the back to the record. Okay so I can't I can't really answer the court's question. Okay but at least council was aware that the records would be coming to the court and could have also asked the court without the excusing government screw up. Well I suppose that that that's true. There is some my recollection and this is a bit fuzzy but in the transcript there is some discussion. On the first day of trial about about the records although they had what makes that confusing is that they Mr. Kennedy's council had actually given some of the records apparently to the parties to. So I mean as on behalf of the defendant I think we can all you know my position certainly would be that yes this was there was negligence here and it and there's nothing in the record that supports you know that there was anything intentional. I mean I certainly wouldn't wouldn't be arguing that on anybody. Right right and it you know I think the court's characterization that this is just a place where several people dropped the ball perhaps. But at the end of the day it's Mr. Flores who goes on trial without the availability of these records and at the end of the trial when we find out that these records were out there. Then we get sort of an a sense of a chance to remedy this problem and this is the issue I think that's before the court did the trial court abuses discretion and denies the motion for. Retrial and essentially I my understanding of the court's order is that it didn't really was an emotion and retrial. There was well there was there was a series of motions I think that the record reflects that the defendant filed a motion to dismiss. And then with prejudice I think when the defendant fence council initially believed or thought that this was intentional when the government responded that it was an intentional and then asked for the government actually filed a motion to. To dismiss without prejudice and then defendant asked for the objective to that motion and then they filed a motion for new trial. So it's a complicated sort of tortured history about the procedural what fallout if you will after the trials over. My primary argument though is that is that the failure to disclose here was prejudicial to the defendant regardless of where the fall lies. And college versus Whitley talks about in circumstances where information is not disclosed the standard being the reasonable probability that it would have affected the outcome of the trial. Didn't Kennedy testify on direct that he had a serious long term cocaine addiction that it affected his memory that he was receiving treatment including medication. That he was testifying because he'd been caught and didn't want to go to jail for a long time. All those things are exactly true. And to what would you what would the medical records have added in your view? Two things. The first thing is that when Mr. Kennedy testified about those things he portrayed his treatment as being what I would what I've characterized in the brief a sort of run of the mill substance abuse anxiety and depression. What the treatment records show is that he actually had a much more serious mental health issue. In fact at one point in time claiming to suffer from auditory hallucinations. That's a far different matter. I would submit to the court than simply saying I was taking I was receiving mental health treatment and taking medication. That's the difference between somebody who certainly may have some mental health issues as opposed to somebody who is admittedly at least at some point and to not in touch with reality or at least having a difficult time perceiving reality. And really when we talk about the credibility of a witness at trial and you know there's two there's two components to that the first component is their ability to sort of understand and take in the information that they're that they're that they've witnessed. And then the second part is their testimony of trial their ability to recall that at trial or their motivation to recall it at trial. Really the the and and again I think it was good a good job of impeaching the witness by the sense council with what she had. She did a good job of talking about getting him to admit things that went to his credibility and his recall at trial. This is an issue that really goes to his ability to perceive that those facts and his reliability as a witness. So the fact that he had suffered from hallucinations is a much bigger deal in my mind as opposed to somebody who had just been receiving mental health treatment and or was a cocaine addict for example. The second part of that the second point I would make is this is at least if not more important than the first point is he lied about. He lied about his mental health treatment he would directly ask a question by the US attorney and said well you didn't have any hallucinations or anything like that and he says no no nothing like that. Well if the defense council had been able to have the records in her possession at the time that he that he asked that question. That's the difference between having having a witness on the stand to may have some credibility problems and a witness actually sat there and lied to a jury panel in the courtroom. Spence off you mentioned this issue of the additional information about hallucinations it was a rather as I recall rather Kurt short statement in the records mentioning some indication of auditory hallucinations and that's the only thing that I recall in these records. Why isn't the equally plausible explanation. Is that the witness simply forgot and if there really isn't anything more about that particular symptom how does that change the calculus here. Well I would submit your honor that it's more than just the isolated sort of auditory hallucination he also has this episode where he describes himself as having a nervous breakdown where he's found naked in the front yard. He did he he certainly omitted that he wasn't asked about well he was asked about a sort of general question by the prosecutor he's not a medical. Well but he but the the I think the court can look very clearly at the sort of sequence of questions the questions by the prosecutor are asking him you know well this is basically this is just you got some mental health treatment but the severity of it is is really the focus of it you didn't have hallucinations it wasn't more serious than that and actually the records demonstrate that perhaps it was more serious than that and he admits that I understand the courts question about well he could have just forgot about the hallucinations I would submit it would be very difficult for him to forgotten about. This episode where he was how naked in his front yard that well maybe so but describing it in medical terms and attempting to pin a diagnosis on it from a layman's perspective might not be possible well but and that may well be true but the what's the defendant's remedy is that he's an injury trial and he has a defense lawyer that can follow up on ask questions about that but the defense lawyer can't do that if the defense lawyer doesn't have the information that that should have been disclosed to councilmember. I think I think I would have been in order to do that I've run past my my time here I think perhaps I haven't thank you apologize and I think that the follow up on those two points too the reason why the the trial courts order would content we would contend is an abuse of questions because it doesn't actually address these particular issues at all it sort of talks about well this is cumulative it's more impeachment this is much more significant in impeachment evidence than then the impeachment that was done at trial it really does go to the witnesses not only ability to perceive facts and I've talked aside of the cases from around the country which talk about the difference between somebody who can perceive facts and correctly and not perceive facts correctly and then then what I would I would continue to characterize as being at least a statement of a mission as if not a statement of actual falsity about what the scope of his mental health condition was and treatment was. So the trial court really doesn't analyze that no one really argues it the way I think that that is offended it should have been argued but that is just an issue that doesn't get addressed excuse me. Council received the new beginnings material the morning of trial which council the full are you talking about the government council no force is council. Am I not remembering that correctly she received the defendant actually and defendants council actually received the full records once the jury was out they come back on I think it's a Thursday morning after the jury has been instructed. But I thought that she had received that the council had received some new beginnings materials beginning actually my recollection is is that some point prior to trial. Mr. Kennedy's attorney in response in response to the rule 11 information had disclosed both through the government and the defendant a portion of the records made and made information available to the government which the government. Correct shared with the defendant right apparently that was the information that was that came from Kennedy's council was given everybody is my understanding however it didn't include some of the what I would consider to be the more serious issues that are related in the actual matter. The auditory hallucination involved music playing I believe that the that's what I sleep he would recall mute he would hear music playing. That that sounds similar to what what my recollection is. Thank you the last issue the second issue portion on brief is simply an objection to the violation of the defendant six member rights have the jury actually find drug quantity which I would submit to the court is the trend that we see from the United States Supreme Court. I understand there's no cases that certainly would be against the case law in this district in this circuit. But you have preserved the error. Yes ma'am. Thank you. Thank you very much. And you have some time on our bottom. Miss Christine. May I please the court able Christine on behalf of the United States and yes your honor. In this case the district court correctly denied defendant's motions for mistrial and neutral because there was no Brady violation in this case the defendant failed to show that the government suppressed the evidence and as this court has previously held information that is available to the defendant does not constitute a Brady violation. The Supreme Court made clear that the Brady doctrine applies to information that is known to the prosecution but unknown to the defense and that is not this case in this case the defendant had the information readily available to him from an independent source. The record shows that the defendant learned about the mental health records at least two weeks before trial. The defendant served a subpoena on new beginnings a week before trial. Defident did not follow up on his subpoena to make sure that new beginnings complied with the court's order. But even with that the court rule that defendant was entitled to those records the day of trial before trial began. A reasonably diligent defendant would have checked with new beginnings once he had that order in hand and checked make sure that he had all of the records. So in this case the defendant could have discovered the missing information before trial and certainly before Kennedy testify. So he was not entitled to rely on the representation that she had received the records. No, Your Honor and any reliance would not have been reasonable because in this case the prosecutor made clear when the prosecutor raised the issue with the court the prosecutor explained that he had obtained records from Kennedy's attorney. Yes Judge Duckie and he explained and that he was producing what he had. He explained that those records came from Kennedy's attorney's records. Now certainly in this case and as the court can see from the record at 661 and 663 new beginnings internal emails show that even though Kennedy's attorney was authorized to receive any and all information about his men. And he was talking about the mental health records. It was new beginnings that gave him a subset of the file. Well, we know that now but the party didn't know that then and that's exactly right. But again, if back to Your Honor's question, the prosecutor made clear that he was producing what he had. But he did not represent that he had gotten those records from new beginnings and he did not represent that it was a complete file. He did explain to the court that a package had been delivered to an assistant US attorney. He also explained to the court that he did not yet have that package. But he had obtained what he thought was a duplicate set from Kennedy's attorney. But he did make clear that that was not coming directly from new beginnings. There was there was no indication in the record that the government had a subpoena or that the government was planning on getting those records. And so there is no reasonable reliance here on what the prosecutor said. But again, even if the prosecutor thought that he had a duplicate set, a reasonably diligent defendant armed with a subpoena, armed with the court's order that he was entitled to those records before trial began. Would have checked make sure that what he had was a complete file. Well, you know, when you think about what the prosecutor did here and it doesn't appear to be an default on the part of the prosecutor here. It was quite reasonable what he was assuming. And I think the record shows he thought he had a thought he had given him everything and then he went back and he saw this big package. He looked and he saw that it was much thicker than what he had given. At that point, he realized he hadn't given all of the records. That wasn't all of the records. But even given all this here, it seems like the remedies pretty simple. The government was asking was acquiescent. And I think in saying a new trial without prejudice. The defendant seemed to want to do it. We're prejudice, but as I understand it changed the mind and says, okay, we'll just have a new trial. But the judge wouldn't do it. If I may respectfully disagree, Your Honor, the record shows that the government did in fact make an oral motion for mistrial without prejudice. But the record also shows that that motion was made in response to the defendant's argument of bad faith on the part of the government. The defendant raised the issue of mistrial first and defendant claimed that mistrial was warranted because of the government's bad faith, which would have precluded the government from being able to retry the case under double jeopardy. The government in response to that indicated that if the court was inclined to consider a mistrial, that it be without prejudice because the government argued that there was no bad faith on the government's part in this case. But the government... That seems pretty evident. There's no bad faith. That seems evident in the record and maybe even the defendant had come around to that in terms of trying to prove that. So then that just left everybody asking for mistrial and then without prejudice. But the trial court wouldn't do it. Even the government felt mistrial would be at least an appropriate remedy or one they could live with. I mean, you just try to case again. You got everybody there. Well, you're under the government only only suggested that remedy if the court was inclined to grant a mistrial. The government consistently argued that there was no Brady violation. Consistently argued that... Just to that. And as you say inclined to grant a mistrial, you suggested it because you thought the government could... The court could find bad faith. But the base, the type of mistrial you were asking would be not based on bad faith. And Judge Wynn, that again went to the issue of whether there was double jeopardy. That claim, that issue was not before this court. Although defendant argued it in the district court, he abandoned that claim on appeal. So we are left with rather not the court was correct in... There was no break. Well, it was not correct in what it ultimately did. But it just odd that when you have both parties that seem okay, have a mistrial and the only thing is whether it's with prejudice. And then it seems like the defendant comes around and says it's without prejudice too. At that point, in a day, he says, okay, we won't have this go up to the full circuit. Say those judges some time on this, we'll go ahead and try this again. You won't have that issue. But it goes to go forward. That's my point. Did the defendant ever say agree to without prejudice? No, the defendant never agreed to it without prejudice. And that was the issue. But now make sure I understood what defendant's counsel just represented on that. I thought that he said there was a motion to dismiss with prejudice. And then after they determined that is what the circumstances were, they then decided to go with the motion for a new trial. That was when I asked about the retrial because he said retrial. That is not my recollection of the record. Your Honor, my recollection of the record is that the defense immediately argued bad faith on the part of the government. It was clear from the record that there just wasn't enough information as to what happened at that moment in time. I don't think that was the purpose of the thing. You can go ahead with what I've just was curious in terms of both sides being there, things like you and agreement and judge just wouldn't do it. And I wouldn't know. Defendant is not a defendant is not appealing that ruling. The defendant is appealing the motions that were post trial. Mr. Christine, back to your earlier point about the lack of a Brady violation. So I understand the government's position. Your position is not that the government didn't have these full records in its possession because you obviously did another prosecutor had the records. They just didn't know that they had been subpoenaed in response to a defense request, but that the defense had equal access to these records. And therefore that's why there's no Brady violation. Is that fair? Certainly, certainly that's the first part of the government's argument. Yes, Your Honor. In this case, at some point, the records did come into the government's possession. And that was the day before trial. But even after the records came into the government's possession, defendant continued to have access to those records because new beginnings continued to be the source of the information. And so even though the government did at some point get position of the entire, excuse me, get possession of the entire file, defendant continued to have ready access to those records knew about the records and certainly could have as the government stated in its brief, could have checked with new beginnings to ensure that that he had the entire file. The second part of the government's argument is that even, even under this, even without the suppression element, defendant here felt to show that the information was material. First, the defendant felt to show that the information was not cumulative. And as was discussed earlier, certainly in this case, the defendant was able to attack Kennedy's perception ability to perceive events and Kennedy's motive to lie. First, in attacking his ability to perceive events, there was other evidence of mental health issues. And he did use that evidence of mental health issues to attack Kennedy's ability to perceive events. He used the fact that he had severe cocaine addiction, that he had memory problems for a long period of time, and that he was being treated for anxiety and depression. His ability to attack his motive to lie, he had ample other evidence. He had his cooperation with the government. He had his plea agreement with the government. He had his prior drug dealings. He had the fact that Kennedy was caught with two kilograms of cocaine. He had the fact that Kennedy was facing a 10-year mandatory sentence. What about the fact that he was, at least according to the defense view of things, was caught in a lie in the very court proceedings in which he was testifying. That's pretty compelling, powerful evidence, which I don't think can be properly characterized as cumulative. And no, your honor, Judge Diaz, when you asked the earlier question as to how much, how many questions were asked about this? You're right, there was one question. And that question was couched in a number of symptoms. So there was symptom A, B, C, hallucination, and D. The record doesn't indicate whether or not he understood. He answered no to all of them. And perhaps the question was not phrased very well, but he answered no to all of them. He was asked separately about hallucinations. And again, he may have a different view of what, he may not have understood what the prosecutor meant by that. But it's clear that the defense would have had the opportunity to indicate, well, you said this, but here's these records that suggest otherwise. In my understanding is that it was one question and the question was couched. It wasn't simply, did you experience hallucinations? It was, did you experience this symptom, this symptom hallucinations in that symptom? And he answered no, simply no. And certainly that answer was not accurate asked to hallucinations, but even if that missing information, even if that piece of it further tainted his credibility, there was overwhelming evidence of defendants guilt. In this case, and certainly in this case, the jury had poolines description of the entire drug deals and how they worked. The jury had phone records that trace that last drug deal from beginning to end, including multiple phone calls between defendant and Kennedy. The jury had photographs of the seized cocaine. The jury had agent Cohen's testimony instructing Kennedy to call his supplier to come and pick up the drug money. The jury had defendants own statements during that last phone call, arranging to pick up the money in the same place in one hour in the truck in the toolbox indicating frequent transactions of that type. The jury had defendants actions and arriving at Kennedy's residence and driving around the back of the residence and parking behind the truck where the money was supposed to be and in walking towards the truck at the time that he was arrested. The jury had photographs of defendant at Kennedy's residence. The jury had agent Cohen's testimony about verifying through the phone, the cell phone that that defendant was the supplier that Kennedy called in that last phone call. The jury had Kennedy's positive ID of defendant's photograph as his supplier during a show up at the time that defendant was arrested. So there was overwhelming evidence here of defendant's guilt. And as far as the sentencing is concerned, defendant knowingly and voluntarily waived his his his the claim that he now makes on appeal. And certainly in this case, defendant objected to any drug quantities being submitted to the jury at trial, even after the court explained that the law required that at least threshold quantities be submitted to the jury, defendant emphatically stated that he wanted no quantities to the jury before so so defendant has waived his claim. And if there are no further questions in the government, ask that the court affirm the sentence and conviction in this case and thanks the court. Thank you. May I please the court, I'll be brief and just clarify a couple points. One is the question is that judge, when asked about the sort of sequence of who made what motion and what order. It's correct to say that there was an oral motion for mistrial with prejudice that was made by the defendant. The government then made an oral motion without for mistrial without prejudice. The government then filed a written motion asking for to deny. Well, it was it was a written motion and opposition to the defendant's motion for mist oral motion for mistrial. And then the defendant on page 817 filed a reply to the government's motion in which on page 820, the government, the defendant argued that essentially that the government, the government mistated the rule, the standard for under rule 33 for a new trial. Although it's take some parsing to get there, there is certainly a suggestion in that reply that a new trial would be an appropriate remedy. I would note though that it's in the section D that the defendant also says, oh, and by the way, judge, you can also just dismiss it with prejudice. But I think if you read the totality of that motion and reply again, it certainly suggests that neutral, a new trial without prejudice is is one of the remedies that the defendant would. Just fall back at something real quick for me, and that is just a defendant made an expo a motion or at least action before the court to subpoena these records. Let's understand and the court granted that understand and at that point, what is the responsibility of the defendant? I mean, the court and the records ought to be delivered to the court and the defendant makes the inquiry, the records have not been delivered to the court. So at that point, is that not some remedy that the defendant would possess the, you know, because you've got to subpoena, spin a went to new beginnings. And in some indication, they've not complied. So are you powerless then to just say, well, they didn't pay off. So, you know, or the court order in their attention. So we're just going to go to go to trial. Well, certainly the defendant could go back to the court and say, you know, they didn't they didn't want to win you. You went to trial with valor. Well, you knew they were there and you knew to have these records and you about to go to trial and you know you've got this court order telling them to give you these records. But it appears that though they haven't. Well, I think that my read of what happened here is that the defense counsel didn't do that because of the fact when she shows up the first day for trial. Well, you know, there's this discussion about what we you have all the records that were given records that were other counsel had correct. If you're going to accept that, then that's, you know, that's not new beginning. I mean, you got to got it. What you entitled again, the records from new beginning. And what you chose to accept were these records that had been supplied by to the prosecutor who didn't gave them to you. You didn't use what was available and says, no, you want to we want the records from new beginning because it could have been changed and they could have happened to them. You want to have the records. But why didn't you do it? I mean, and it just seems logical. I mean, we actually had a case sort of similar to this in which the old question was does the hospital have to turn over these records and how do you do it? It was a different context, of course, but that's a being is pretty powerful stuff. A court order to a facility means turn over their records and the failure to do so, the remedy can be pretty quick. Well, and I don't have a good answer for the court about why defense counsel didn't follow up and do more to ensure that that creates the problem on the alternate source. That judge Duncan alluded to earlier and of course, it seemed to have some initial concern about how do you get over that? I mean, how do we come in and say there's a breeding violation when all you had to do was just you've already started the process. You didn't go up and open court says give it to and everybody knows about it and the prosecutor get him. You went in exparte and got it. What I would say want to blame the government when it comes to them in an envelope, I assume it doesn't say on that envelope these are his medical mental records when they'll help record that doesn't say that probably for obvious reasons. So I don't know what it is. And they're not expecting anything for, but you complain you didn't get it all. And yet you could have gotten it all. I'd say I'm out of time if I may have chance to respond. The problem with that is that is that they're supposed to go to the court. So to some extent the defendant can only know if that that hasn't been complied with if they are advised by the court. I mean, I understand the defendant could have defense counsel could have come in and said did the court get all these records. I think that got lost in the wash of we discussed when they walked in and started talking about these are the mental health records and certainly the ball got dropped here on a number of occasions, but I don't I don't think that that necessarily I'm sure that it doesn't mean though that this is this somehow is an alternative source. It was all going to come through the same conduit the question of whether who dropped the ball at what point in time still resulted in a negligent failure to disclose the defendant. There was no other thing the defendant could have done than do what they did other than show up at trial and say, what negligent failure to ask. Well, and perhaps that's true, but the fact is the government did get the records and didn't and didn't disclose them. And I mean, they didn't know they were coming. Well, I'm not sure that they didn't know they were coming. That's not clear from the from the order, but. I asked one more question. The question to the witness with respect to hallucinations. My recollection is that that question was asked in isolation. He was specifically asked about. The hallucinations separately. Is that your recollection? Actually, I found it in the record and it was a bit of a compound. My recollection is it's a series of questions that are asking a rather sort of compound way. I would agree with it was with Miss Christine. It wasn't a it wasn't a very well articulated series of questions. It included bipolar and. That's correct. The part of the point is that you had the records you would have. You would have died into that aspect of it. Did you just tell us it was hallucination? I mean, that's part of it. I think it seems great a problem. You got to swear initially I was the alternate source. I'm just not feeling that right now. Maybe I will. But we'll see. Thank you, honest. Thank you, council