on all of our area i'd like to talk about the search in this case it's an unusual search warrant and that there was no corroborating background material included whatsoever and in the  provided the only basis for probable cause the problem for the government is that the finance repeatedly stated and misled the magistrate that he had actually seen my client and other people engaged in well that's sure your auto however in this particular case and the in the supreme court has made clear that the fine can't simply hand off the warrant to somebody else which is kind of which is exactly what happened in this case as a matter of fact the defiant swore out the the warrant got the warrant came with the search team gave it to someone else and then he stood outside and pointed out we'll go in there and he stayed outside while while the the warrant was executed supreme court has a brief clearly that that is not that is not sufficient but the the question is whether the law enforcement it's he and the law enforcement agents they acted in an improper manner and if so the purpose of the exclusionary rule and this is a had been he had never never searched in this housing project before however he was familiar with the housing project that he had been in other buildings and what he said was i have seen other buildings and they're always laid out this kind of same configuration so he and if you look at the picture that i included the photograph from the government you can see there's there's a backside at the back side to this building presumably the exit somewhere in addition to that one of the one of the witnesses at the at the suppression hearing portman seven different times you know police officer knows what that means and knows what that signifies to the search warrant magistrate it's a different story to say well i didn't see him go in but i think he went in and then  well why do you think that what's your basis for that and the search warrant magistrate midnight and they said well i don't think that's enough you have to go back and do the things that church crowd was just asking about well how do you know what with the interior of the building was show me show me i'm the magistrate you show me the search warrant i can't defer to a policeman and that's exactly what happened here according to what happened here the police officer thanks well i know what's going on i don't have to tell the magistrate i'll just say well these are my conclusions but i'll counts them as personal observations and the reason i suspect that that was done was because there was no background there was no there was no there was no indication that mr go on lived in that apartment there were no records there was no interior observations of the envy of the apartment it was whether it's for face or not i don't think is really the question i think the question is where did you find it was truthful in the affidavit and he wasn't i mean it's one thing for him to say well i didn't see him going to the apartment or come out of the apartment any of the seven occasions but i think he appearance of such in this case in particular in light of the first circuits recent case in august united states versus rivera rodrigues as that case is indicated well or yes i did your honor and i also joined in impartiality and guard against giving the jury an impression that the court believes the defendant is guilty this becomes very problematic when the judge takes on the role of questioning and the judge has to be particularly mindful specifically  administration of justice that must not merge each judicial intervention raises the possibility that the jury will perceive the court as biased toward one party or another citing starr versus united states supreme court and eight hundred ninety four which said that it is obvious that under any system of justice any system of jury trial the influence of the trial judge on the jury is necessarily and properly have great was doing was having the effect that you're now on appeal pointing towards us and specifically usually if a judge is doing something that's really helping the case in the way to get some attention the first person to notice it in the courtroom is defense counsel and they squawk they're there i'm happy with it and it's not a first in the record here we really don't seem to have much long those lines to work with it looks like a lot of able to fence counsel through a number of these incidents there were objections and in fact my client's attorney mr d l s at one point indicated his concern that the judge was having to go in and make those questions and read state issues and that was made in particular with respect to the notebook and the page number and i'll try to get to that citation fairly quickly  well and i think part of what was going on here when you read through the entire transcript which is what has to be done when you're looking at the cumulative effect of these errors is that you had one person he was injecting to a lot of things that went on others were sort of allowing him to be the team captain this became an issue and as i indicated in my brief it became a source of conflict that made the judge go very harshly against the defense and in particular mr ensnare as far as in the other case the relying on to who we noted that the judge interceded on really what were essential very crucial points in the case with respect to your client what was the most harmful point the testimony elicited by the judge one two there were a number there in getting it was her first of all taking on the role of the prosecutor she wasn't clear i want  what testimony solicited came in and developed the conspiratorial part of the conspiracy through pizarro not asking clarifying questions but actually as a second prosecutor when she asked about to have him describe ok in the times that you went into selous did you get to see members of the organization that used to work with you ok essential point she also asked what about other talks about how to get that in there is an objection repeatedly the judge jumps in and becomes the second prosecutor state stay with you first go back to your first point whether sorrow was always had with people who were part of the conspiracy well there's two issues here one is is the appearance of bias that affects the entire way the judge yes and that's a theory here that's not my question my question is about on how it effects it because those were those were holes that were filled by the judge run my client's presence in the tapes is very very minor this provides a more general connection and makes the conspiracy more connected the other thing that's very a second prosecutor there's a whole colloquy on that which is very troublesome the other thing that's problematic the judge offers to open up evidence but on behalf of the prosecutor the judge talks about the intent of the prosecutor and this is probably one of the most problematic perts of it and it's very similar to what happened in riviera rodriguez because she says when when pictures are being brought in the government does not have and she says to the jury the government does not have any intent  examples which i can continue with and my ok thank you they never mentioned luis nieves kind of they never saw him they never met him they never saw him with guns and most  five six and nine dollars not a twelve dollar drop point now why why do i now say this because those two informants were the ones who really gave a thorough review of what these points were they were there they were seen on a day to day basis what was going on general that that it can't be because if he only if there aswell as the other two who are the agents eyes and ears he should have seen the same things and he never spoke in own they couldn't of found that he was part of the conspiracy that's going to judge the widespread conspiracy that was so big and the the the difficulty with that is that so much of the didn't a lot of the evidence established that this was kind of a tyranny conspiracy in this place there was no one else was going to be selling drugs in there without permission as part of the whole deal how do you address that  maybe he could have sold on his own but there was never any twelve down our baggies bought by anyone or even seen by anyone johnson am i correct that the factual narrative in the indictment states that your client ran a cocaine drug point that is why the state at n p r and i don't judge and do you know how defense counsel at trial exploited the difference and he's not edge in the operation of the drug going that was operated in this housing project this this drug conspiracy had four different locations that actually were covered by the same group him they knew details about him then when they were testifying they were showing of pictures of these locations and days identified where we then the housing project which is a large how to project said name is kind of slipped so they have actual knowledge of who was this person they even knew that he was a bus driver that before he went to work in his work as a bus driver he will give out the drugs that were going to be sold at the truck point and these witnesses they were separated but by gran's by prices and they would know no one not only the ones who sold them anyone for the twelve dollars but they also knew about the owners of the other money one that was so and you know was explain the difference between the factual in housing and the housing project specifically say yes were sold in the same location so i mean i can understand how you know a grand jury may may have received evidence about a cocaine drug point and it ends up in the indictment and then as the case goes to trial it's not there for one reason or another but that's actually what i'm asking how do you explain why there's no testimony about him running cocaine and let me tell you why i'm asking a question it has it has to do not so much with the variance argument that counsel makes but with elaine in place now and where drug quantity and specific types of drugs and quantities are thought to be elements it's going to get very confusing sorting out the elaine in the very very morning respect to cocaine but the only evidence that i saw of that was that one incident where there where somebody who was in a car with them had a vial of cocaine that's seems to me somewhat different than running a cocaine drug and the only explanation would be that the fact that the drug plan where these money went to was sold was also the cocaine was also being sold in that same location so so not only the evidence that he and active participation within the conspiracy as his role as a person that not only would trade in the drug business but also that he will carry firearms in furtherance of the drug trafficking organization so  that was held before a magistrate judge in which the judge had the opportunity not only to to listen to the testimony of the offie and and look into those falsities that were claimed by the defendant but also the additional evidence photograph and the testimony percent that the the magistrate judge determined that there was not a falseness in to the agent's observations of the several this tent and different of his locate where he was located doing the surveillance and where the apartment forgotten was located and these apartment was look at it it's a housing project is a building that consensus of six different units and they have a stairwell in front of him and there's a door that could be easily seen because it has nothing that piece that this is really and there's a right location and the only place they could go is either going up or going to the left and he did not go either of those like directions then he made the inference that he was going to the apartment on the right side of the building just in the swarming that there might have been a back boehm the i don't know if it's in the record but i in the in the affiance statements that led to the issuance of the search warrant but also the jury had the opportunity to also make that determination because the evidence was present apartment was located within that building that knows to the credibility of the agent in terms of the what was the statement that led to the issuance of the search warrant and later on as to the evidence that witnesses that identified god and that's one of the leaders who went into the higher up ranks of the drug trafficking organization that he had control of the operations in cells also  a long rifles and a forty seven that was also identified by the employee who testify in trial and he even explain to the members of the jury that he knew where exactly within that apartment that determinations you can make the inference that the they didn't use the instruction that were given to them and they have applied them to their cases you know whether the same verdict form was used as to the issue of biased and what has been presented to the court of the the actions that the court  took that had not been presented in effect from presenting different in isolated events in which the court had to take measures in to control not only the presentation of the evidence but also as to control  the objections or consumers objections of certain attorneys the the record does not reflect a judicial by as that could be similarly to the one that it ask you to make sure i'm understanding the facts correctly based on the collective briefs that one filed i counted fourteen instances where the judge started questioning a witness in every one of those instances  towards the benefit of the prosecution and all fourteen instances with any instances let me ask you two questions about that and my misreading any of those instances there in the brief fourteen instances and secondly  occasions where the judge intervened to clarify to the making of a point that the defendant was ever trying to make any defendant was trying to me yes you did says that eighteen day trial which multiple pieces of evidence were percentage were multiple questions were posed by over fifteen witnesses that testified throughout the trial and sometimes a point when it was not clear and i cannot pinpoint when a specific   correctly to a single instance with a judge help clarify a defense point or help the defense get over it seemed to me one of the prosecution objected the judge would if the objection was correct simply sustain where we're pointed instances where when the defendants objected she then jumped in and asked questions that obviated the objection if you are telling us  that there are instances where she did that but the defense would be very helpful to know we're here when that happened well i understand your question and at this time i cannot go in specifically because these are eighteen days of trial but i also understand that every time the objection was posed most of the time these objections and the same objections were posed by the defense counsel's these objections were discussed at sidebar and most of the time the judge court's action in some way to my have been interpreted that she was in favor of the prosecution's case or taken side with the prosecution i think that the the record throughout the trial does not aside from these evidence and trying the case just only by the facts and the court has no tendency to go towards one party or viewer so i think that the church also cautiously instructed to truly not to take sides into and not to make any inference if the court made any questions because she as she explained she explained that that was the role of the church in terms of of of controlling and managing the trial and in the district court most of them are evidentiary rulings and and and in that particular allegation by adopting these these arguments you know one of them got on one of belated arguments should not be considered by this court in terms of as specific but it certainly conveys the impression and in the context of that how frustrating it was to have the judge having to do that all of the time with respect to the notebook there were jeff sessions throughout one hundred twenty two in volume three as well the talk that where there were biased and that she had a stake in the outcome was in a financial state like you know heigho to me but it was a stake in terms of being and in wanting a conviction and wanting the prosecution to prevail and i think the most evident aspect of that was when the judge said and this was an eight one seventeen to eighteen when they were they were at a sidebar and the government was trying to get in certain hearsay testimony which is th court probably somewhere became a very big issue throughout as one of our other points which i want time to go into but the point is is that when they get to the sidebar the judge says and makes tells the prosecutor what to do as a corroborate or discredit whatever the informant said and here's the critical sentence we need that and that's one of the issues i have with the judge in this case is that when she takes on not clarifying role but actually a very what in the words i think of rivera which is they visibly and forcibly assuming the role of the prosecutor she doesn't not only is giving the appearance to the issues and both of them are very powerful because you have a judge who is you know obviously quite frustrated that this prosecutor isn't doing what she needs to be doing and instead of even  handedly letting the prosecutor do what needs to be done and let the chips fall where there may she takes on that role and that's very very great concern but when we see her identifying herself as the prosecution that we need that  various issues that were here my client was acquitted of four of the six counts and two that he was convicted of the crack and the conspiracy itself so the issues regarding getting around here say infections getting around  involved the crack and the conspiracy itself which was the notebook and the issues of the conspiracy and here's the testimony that were part of that so i think in some ways that proves the case you have a judge who's actually offering to open physical evidence on the prosecution's case the visual impact of that not to mention you know taking off the black robe is is astounding and it's one of those things where i really see th actually bias and it's a kind of thing that you can't really wait and say what is the jury think and we can see that because the issues that were she was most concerned with the judge which which was getting these connections with in the in the  conspiracy i want to note that stood out in our brief in fact the judge did not properly instruct them on and on conspiracy when she when the jury was confused gave a note she actually let left out a very important aspect