wiretaps in baltimore court will be the focus of my argument unless there are questions on anything else i'm happy to answer so with regard to drug beginning with sentencing after a nine month investigation involves multiple wiretaps g p s tracking physical surveillance paul cams the government came up with zero evidence hard evidence of mr minnick possessing any heroin they went to both of these houses they found zero heroin there they found no residue of heroin there they found no paraphernalia long people around us so that you put forward some some circumstantial evidence so when it comes to the weight at sentencing they didn't have any hard evidence and what they were the judge relied on instead was two numbers that he multiplied together to get the number of nine twenty two and i just want to take the court through what that rationale was there were two numbers st was one twenty five that was one twenty five kilograms was the base weight the judge estimated mr minnick was involved with and multiply that number by seven to four doesn't get you all the way to heroin much less kill grams worth of of heroin so that's the one twenty five number comes just from a text message that that the government introduced the seven comes exclusively from the  said was that shawn wilson told him that he gave him three kilograms at a time we don't know what added time met whether it meant every month every ten days every year we don't have any testimony to that on that point either so between mr minnick and shawn wilson christian byrd and other people who were found to have been involved in heroin but again they charge him on this big huge cow which is responsible for his his prison sentence fourteen years  he was involved with and also with marijuana too so the mere fact of pains and contacts and text messages and visits doesn't again show that he was definitely beyond a reasonable doubt involved in heroin itself and not just marijuana sales and   and another one was christian burn in june but even spotting the government that those were crack even though those are of teens from two other individuals and fingerprints were done on the stand back heroin and mimics fingerprints were not hundred grams one thousand grams is five years of mr franks life in prison and they have to show that beyond a reasonable doubt and hickman again it's on point that even though you can show that someone was involved in the comics conspiracy that was fairly of categories that are that are kind of mention but if you look at each of those sort of sections they are sort of a textbook example of how to do sort of kind of burrill plate analysis it's generalized it could've been used in any drug said look there are numbers or categories and look years wilson had multiple cars and he checked his cars fairly frequently so g p s tracking wouldn't work but on that issue we're particularly concerned because we also learned later on in the suppression hearing trial that the same agent who applied for that shawn wilson wiretapped one a full month before had set up a ping order on shawn wilson where he was getting an email every fifteen minutes indicating where shawn wilson was by g p s location and he never mentioned that so those are the two issues on the ceci that was basically a factory necessity section plus there was an omission of a pretty material that from that from that statement the other issue that we want to raise before the court is that the kind of target subjects the mismatch targets objects between the affidavit and the order in the shawn wilson wiretap in the affidavit there were seventeen individuals who were listed as targets objects in the order it was just it just came down to six but then the eleven of them were mentioned and they were called target subjects and then the order incorporated by reference the affidavit itself so you have a statement where the affidavit says seventeen the order says six corporates i referenced the other the affidavi wiretap he was someone who they do not have problems for so they listed him on the order and then explicitly said we do not have problem for him and so there the harm is that he's then basically looked at as a target subject called target subject in other people we don't know yet know about and then there's another list of people we think these may be the other people who are not yet sure about but we're not quite ready to say probable cause but you're still allowed to get their phone calls you still have to copy their phone calls and and it's actually sort of a transparency thing to put their names and because then they get noticed so that's why i guess i have the same question is judge rushing i the only as far as i can tell the only consequence of listing them out in that  between whether they are or not and i think the order it self is very confusing would have been confusing for an agent and therefore when of compilers a requirement that you specify clearly the target subjects on that particular wiretap thank you are you  wiretap in maryland state court there are several different documents that are part of that there is of course an affidavit an application an order a service provider order and several other different documents so if you look at the shawn wilson wiretap affidavit itself which is what the filled out it says that mr minnick is in fact the target subject however there is indeed a discrepancy with the application which is what was signed by state's attorney greg bernstein for baltimore city where mr minute is listed both as somebody who there is probable cause to believe his committing the subject offenses and somebody for whom they suspect is involved in the subject offenses but whom for whom probable cause has not yet developed now is this pretentiously confusing however the united states supreme court has actually passed judgment on the very issue with regard to the inclusion or the lack  which also does discusses the substantial compliance standard with wiretap law which is what the government believes is the standard under which this court should and all eyes are compliance of with the maryland wiretap the court notes that in that particular case two defendants were not listed as as targets the target subjects but that was not the sort of make or break error that required suppression and that's our position here not t expand on what i believe judge rossing rushing is mentioned mentioning here the maryland state wiretap act says that it requires strict compliance with the with the statute however that is a more stringent  rule than in the in the maryland state courts however the federal rule in supreme court precedent is to govern the admission of evidence in federal courts so our argument is that the wires have affidavit and the materials itself must meet the substantive requirements that are that are required under the maryland wiretap act however for the admission of evidence in a federal proceeding it is the substantial compliance standard that there ought how do we given that this isn't plainer review if we think that look there's been at least a clerical error on this thing shouldn't be in two places and two different lists it is true that under plain error you would have to show that th issue so do we play that standard or do we play the substantial compliance standard do we take how do we work those two things together so we believe it's a plain error standard because of you because it was not raised in the district and we actually also know to that point we disagree with council that tribal council raised to challenge the necessity of the wilson wiretap those to answer i'll come back to that dense or next question substantial trackers at issue here for vehicles their g p s trackers at issue here for for telephones as well all of these all of these methods of surveillance and methods of investigation were authorized by either state court judges where the  investigation began in baltimore city and then federal judges by chief judge chose now who are who authorized three wire taps in this case so to suggest that there's a miscarriage of justice in this particular case where investigators took measured steps seeking judicial authorization over and over and over again would be it would it would be an unfair standard to use especially when client one applying the plain standard  plant error standard that the government believes applies here so circling back to what i mentioned before about the wills and council move to suppress the wilson wiretap and the district court that particular motion to suppress challenges the probable cause affidavit that's included in the supplemental joint in the counsel's reply brief he mentions a the defendant mentions a response to the government's response to wilson's st motion to suppress there he mentions that necessity or seems to be the necessities challenged if you actually go to that document if you go to the defendant's response to the government's response the motion to suppress the word necessity does not appear in that document to the extent that there is a challenge to it counsel does mention that there was not sufficient financial background investigation so even if you were to construe that to represent a challenge to the entire necessity for the wilson wiretap i think that would be that would be probably unfair so i think that the playing error standard ought to apply because somebody is one challenge something the district court in order to preserve that for for appeal as as we explained in our brief they have to be specific about that and actually object on those grounds in the dish or court so nevertheless in the district court the judge did find that in issuing his ruling on the motion to suppress the wilson to wiretap for lack of probable cause that there was that it did satisfy the exhaustion or the necessity requirements that are that are part of the statute so our argument is st that plain error did not does is the standard here because the specific objection was not raised in the district court and then secondly that even if it was that judge ruled correctly that the necessity or the exhaustion in this particular case was met and to be sure it was when you when you actually look at the wilson wiretap itself the whole document many times during that during the affidavit do investigators mention the difficulties they've had with their investigation for example some of the intercepted text messages that  frustrate the efforts of investigators additionally they talk about counter surveillance techniques and that during the course of the investigation into wilson in april th teen investigators found that he was using another cell phone different from the a line which is the one they sought an authorization to wiretap and additionally they talked about some of the ways that he was potentially changing the methods of the operation of the drug trafficking organization or phone calls where he and brooks describe meetings in los angeles or los vegas and investigators believe that that's an attempt to change the way that their business has been operate and to frustrate law enforcement from doing this now with regard to the tracking warrant that counsel and the counsel mentioned so there's a tracking warrant section in the wilson exhaustion or necessity and that tracking section is written specifically with regard to tracking devices the sorts of things that at the time law enforcement offense to the bottom of the vehicle and it discusses how members of the wilson drug trafficking organization are particularly surveillance conscious now to be sure the affiant does not put in the fact that he had to provide he had provided this or he sought and been granted authorization to get the g p s location information for wilson's home in any event even the omission of that does not defeat a probable cause finding those things were turned over in discovery so at this frank's hearing should have been with his friends claim should have been raised in the district court level and should that information have been included in the wiretap affidavit only would have bolstered the necessity finding that that the judges could have me or that's usually the issue and judge could have made and that's because as i mentioned earlier mr wilson used various phones throughout the course of the investigation that spelled out throughout the  and surveillance alone via phone location especially when phones are going to be rotated in this manner which is consistent with drug traffickers as well as surveillance of vehicles will only allow for more physical surveillance will not provide the substance of the communications between the members of the drug trafficking organization which is specifically what the invent skitter sought and what they needed to further their investigation so our argument is st that under the plane air standard which applies  almost entirely with regard to the arguments about the maryland state wiretap act that there is no miscarriage of justice here and secondly that even if there is it is preserved there is no clear error as the judge was finding with regard to necessity or exhaustion with regard to the wilson wiretap so turning now to the to the issue sentence that the counsel discussed earlier i think it's important to point out the very words the judge long used when sentencing and making the determination about the clickable quantity of narcotics that would be foreseeable to the defendant and he says quote consider the number of sellers with whom mr many and with a large amount of cash and watches involved here this figure may well under estimate the volume vol and value of the heroin sold by mr mi think when you look at the sentencing the sentencing colloquy here it would been perfectly reasonable for judge long to have concluded that twenty seven kilograms of heroin at a minimum was attributable to the defendant and that's because he was getting two to three kilograms are approximately nine occasions doing the quick math there which i'm not good at that could be even as much as twenty seven but here we have a finding of nine twenty two q arrives and what's most important here with regard to the ultimate sentence that the defendant received was that the sentence was still a downward variance from that range so the defendant was sentenced to one hundred and sixty eight months for his involvement in the conspiracy here which was in fact twenty months almost two years less than the bottom of the advisory guidelines range in this case so to say the judge won erred in this case which we're not saying that he did if he erred at all it would be that you found the quantity was too low ms should have been something more in the double digits and not in the nine dollars gram quantities that he ultimately estimated and that's in addition to the evidence that he considered with regard to mr stand back and to some other other folks with from whom he obtained evidence sometimes in the quantity of four to five grams in that when he making that calculation he could have used for or he could have used five grams and the district chose to use four grams again conservatively estimated what the potential amount of drugs forseeable to the defendant was during his participation in this drug now each and every day through courts around the united states people are circumstantial evidence is presented the charge that somebody goes out or somebody is inside and sees somebody outside and they come in and they're wet and they have our role of is routinely given in courts throughout the united states a defendant earlier there's no objection to the jury instructions in this case so i point that out with regard to circumstantial evidence just to show that though the defendant it is true there were no drugs seized from him he's involved in drug talk on the phone he's intercepted via the wilson wire  an amount of time that was below the bottom end of his advisory guidelines range and he benefited ultimately from the judge's decision here with regard to the distro or i think was four weeks your hon so considering the quantum of evidence in this case considering as i mentioned earlier that law enforcement consistently sought and was granted authorization to conduct electronic surveillance in this case in the form of wiretaps and in the form of tracking they ar well i don't think that's the case i think that this started and this is explained further in the bird affidavit this started as a state investigation where baltimore city police were investigating mr wilson who is believed to be a supplier of heroin in the baltimore city area as they continue the investigation in baltimore the simultaneous investigation in the washington d c maryland metropolitan area revealed that mr minnick the defendant was involved in drug trafficking in that area as well so after the brooks and wilson wire attached when it became clear that there was a federal investigation in the washington metropolitan area that was being led by the united states attorney's office and federal investigators down there the they went to the federal court seeking that the government sides with regard to the mathematical calculation that was made in this case and sentencing always begins with some evidence transaction there's this would be the least evidence transaction of a firm and least since since this court decided hickman in two thousand and ten the one twenty five number or the two or three number are just simply not evidence and there was not one shipment of it or two or three from which you can then make conservative kind of extra cell and then the witness says oh i gave him that on some another occasion is multiply that number and you get a solid amount here i'm concerned that there is not a single transaction from which you can then make these conservative estimations and whether you have statement we're in agreement it's not hearsay and federalism it's not contention there but we do believe that that requires as the judge disregards said himself that that requires at least some amount of corroboration but he has witnessed wilson didn't testify and nobody else saw any of the shipments apply maryland strict standard of strict compliance requirement under the maryland state wiretap act see why you would do that to determine whether there had been sort of an underlying violation but why on earth would you apply state law to a question of whether you have to meet maryland substantive standards because that's incorporated into the federal law but i don't understand why when the question is not was the warrant complying but should this evidence come into federal court why on earth would we by state i guess i mean i  they are but i guess i'm just asking you as a matter of st principle why on earth would state govern a question of the it not the substantive compliance of the war of the wiretap orders but whether or not evidence can be used in federal court i mean i section ten tells you you can suppress in federal court under certain circumstances and i don't read any of the circumstances to have anything to do with state law i guess again here aren't you i think are kind of missing some mission here is th court has already decided this this issue of the admissibility of wiretaps and how you construe the evidence when that evidence can come into a federal court if you're beginning with a wiretap that's been a pot for an obtained in state court and you would apply the substantive requirements