morning morning may it please the court counsel pursuant to this agreement he testified against his co defendants putting himself and his family in danger by doing so after he testified he took his wife and a trip to florida which was a violation of his pre give adequate consideration to the significance of the substantial assistance he provided are not from the outset that we are arguing on appeal that the district court did not depart for far enough and i understand that there's a slim chance that this court would reverse on appeal but i would i would argue that this is such a circumstance where we should consider it do we have cases the say that's not even reviewable the degree of a downward departure under the some other protected class i think that there are cases that say when there are constitutional considerations like that that that that would be an exception but there is no rule per se that you know cases rule or otherwise that says that this court cannot consider this on appeal it's just rare that that this court would reverse and remand where there's already been a departure from and when to really at this point if it were still something that we could review  would be compelled to show that at the end of the day it's just substantively unreasonable that the downward departure based on the cooperation was not adequately taken into consideration which is an exceptionally high burden you know if you think about well we've actually found the existence of substantive on reasonability you know it's almost sort of kind of a shock cio when you look at those cases and what it doesn't a deviation or a departure and down to fifty five months which took into account the pretrial release violation so it seems the judge was more concerned about the pretrial release violation of the other people in the room and isn't that just sort are inherent in the nature of judging is that you know once the facts are laid out you have the discretion to kind of balance where those things fit a was was requesting but montgomery held that because of this pretrial release violation i'm only going to depart to sixty three months so in a fact  there was a twenty seven month sentence for the pretrial release violation and i mean that and this is what judge monk emory said on the record so this isn't this isn't there's no extrapolation by counsel here on this on this this is exactly what she said and twenty seven months for this pretrial violation which had already been punished by him to being taken into into custody earlier  and had already been taken into consideration in the government's request for fifty five months that's substantively unreasonable and it doesn't fit it's i am not aware of any other case where because otherwise she can't possibly get by by the virtually unreviewable absent non constitutional consideration that we've said in our previous cases right i mean to get around that you got to have a theory and i and i kind of gathered that theory was he no integrating these factors into it very well thank you for your argument mr bruder we'll hear from you next convictions or conspiracy to commit bank fraud and aggravated identity theft he also seeks three sentencing and those particular challenges are laid out at some length in the brief i filed today i'm go focus on what i believe is the most significant of the issues raised by mr some on which is the constitutional challenge to the search of hotel guest registration records by a police officer pursuant to a minnesota statute which authorized her directed that hotels must give up their guest registration information to police on request it is your does your argument motel owner to they person who actually signs into the motel room at least from my perspective your honor that's relatively easy th amendment analysis focuses on privacy expectations not necessarily on property interests certainly in carpenter the court supreme court recently indicated that property interests is one component of determining whether it is there's an expectation of privacy but only one component the core analysis ever since cats has been on whether there is a privacy expectation which society is prepared to recognize patel focused in its decision on the litigants that were before it which included the hotel proprietor and the court said this is you know this particular record is the property of the hotel proprietor that doesn't for e extending patel to other situations where there's a legitimate privacy expectation and well you know you really have a legitimate privacy expectation in a hotel register if you think about it you register at the hotel the hotel adds you to their mailing list they mail stuff to you they sell their mailing list other people they they they contact you i mean does anyone really walk into a hotel and think that their identity is protected once they sign that register i think that people walk into a hotel your honor with a legitimate expectation that that information isn't going to be subjected to government surveillance or snooping or spying that's in effect what happened in carpenter the court indicated that yes the cell phone records and information was the property of the cell phone carrier carpenter had no proprietary interest in it but the court recognized that he had a privacy expectation that the government wouldn't snoop into those aspects of his life and that's no different then in a hotel in fact in minnesota versus ols the supreme court indicated that when we stay somewhere outside our home we have one of the highest levels of privacy expectations in that particular setting did it did in this case was there some kind of an arrangement between the motel owner and the local police there was certainly a government practice of making daily inspections of the starlight motel records the hotel act with the motel acquiesce to that i don't think they ever i don't think they ever objected to it i'm not sure if that would be called an arrangement or not the police authority to request that information is conferred i believe minnesota statute section three hundred and twenty seven point two seven and i don't know what if the record reflects anything more than that that that it was a daily practice of the police which in this instance i think makes it even more objectionable because this wasn't where the police were looking for specific individuals that they were suspected suspecting of committing crimes they didn't have probable cause to believe that anyone in that hotel had done anything wrong they simply wanted to make a daily inspection of its records so how does how does that what you're sort of describing i guess that's sort of a fishing expedition how does that affect an individual motel yes expectation of privacy does that increase that or i think it makes the conduct more offensive i don't think it has any effect on the guests expectation of privacy itself when people check into a hotel or a motel they expect a measure of privacy they don't expect that the government's going to be intruding in their room that's clearly constitutionally protected they don't expect that the government's going to be snooping about their activities i think they have an expectation of privacy in just their being there at all is that is that what you're positing yes i do your honor and i think that's reflected frankly in the behavior of individuals who have great celebrity who know that they their privacy is jeopardized wherever they go when they get in their regular names so they do not check in and really miss it because they know that they have no expectation of privacy and use their real name now the government cited a whole string of cases here us female or couch against us smith against maryland mcentire we lock involving situations where people gave information to a rd party and the courts have held no expectation of privacy in what the rd party does with the information you don't even mention them in your reply brief you have any answer at all just giving up on that i certainly do have an answer your honor the government normal you should then address them in the reply brief so i thought i did your honor the government's and i mention the five cases even once the government's focus is wrong your honor the government focuses on property interests rather than privacy expectations cats had no interest property interest in his telephone booth and you and i have no interest property interest in our medical records yet society it recognizes them as private and i'm out of time thank you for pointing me to represent mr se aachen it's a privilege to represent him i want to address in my argument today juries issue in this case that was reflected in their question to the court about how they were to analyze the conspiracy they asked the court do we need to find that mister c say and dean also conspired with mr sum on or did they have to just agree the true defendant sitting there at trial had conspired together we of course answered the jury with you have all the instructions well the jury didn't have all the instructions they didn't have the instruction that i had requested on multiple conspiracies the government argues in their brief that it doesn't matter because there is sufficient evidence to show that there was just a single conspiracy in this case i beg to differ with the government on that issue i think it's clear in this case and it's clear the jury struggled with this that there were two conspiracies there was the overarching safe conspiracy that was involved in and that involved cutting checks usually in the two dollars to three thousand dollars range at some point mr sank and drifts away from mr c say it doesn't mean he gives up his check fraud activities and instead he meets mr some on and begins his own conspiracy with mr sum on the reason why there's there's ample evidence in this record to show that these are two distinct conspiracies is because mr sisi got on the stand cooperating witness doing everything he can do earn his departure and candidly admits i don't know mr smug i don't know anything about that that's curious if this were a combined conspiracy you would think that mr simn would know about the fifty thousand dollars checks the big big checks double triple ten times the amount that were typically being run through this you say conspiracy that mr santana mr some on were talking about it said you know as i think about a man never joined that large conspiracy then why didn't the jury joined the charge conspiracy which you're calling the big conspiracy because conspiracy theory is not a simple idea it is a complex idea the courts continuously recognize that that conspiracy is a  multifaceted we have multiple elements we have the skiing that are fraud we have the joining of the agreement we have people coming in and out and it's a complicated instruction and if if the court believed conspiracy was so simple why do we even have a model jury instruction on multiple conspiracies sometimes when as this court is recognize when the facts suggest that there could be the possibility of two distinct conspiracies that the government is attempting to prove as one the jury needs the benefit of that additional instruction talking about that distinction and giving the jury the tools to fully understand and be explained the possibilities of multiple conspiracies so when you're in this case as to your a jury to hear evidence about two conspiracies and be able to just mashed all together but one of the bigger harms for specific evidence for mr stanton was the nd conspiracy had a right wide ranging  jailhouse record it conversations where essentially my client is discussing on audio recordings that were played to the jury how they can see and how the check fraud conspiracy went down and so it gives a quality to the evidence against my client that if this were to conspiracies and had been treated properly the jury wind of her and the evidence wouldn't but not with the jury instruction result in that evidence that it was the least would give me an opportunity to our hugh that you need to compartmentalize that information and that you can't attribute it and und  how did the language of the of the question reflect the confusion on the multiple conspiracies can you just if i mean do we need to determine if the defendant conspired with the sandeen in order to convict on count one or just agree if the two defendants conspired together outside of any connections with others who may have conspired clearly there's they're recognizing the potential of two separate conspiracies here and my times when the judge referred them back to the instructions then didn't that tell them that they had to find that your man conspired with the st two people in the in the main conspiracy charge conspiracy i don't think it answer obviously that the initial jury instructions didn't answer the jury's question to begin with otherwise they wouldn't have raised this question and so we tried to dumb back to the position that we always put jurors and when they ask questions and tell him you've got everything is they have to guess ben at the meaning of the law and the jury shouldn't be guessing about the meaning of the law they should be properly instructed in this case they want thank you all right thank you mr mar thank you your honor good morning good morning counsel my name is amber brennan i represent the united states i also was counsel at the trial court level and represented the united states during the investigation their in their briefs and obviously just now argued by mr sanford and the we have a fundamental disagreement about what the evidence was in this case and there was clearly no evidence that would allow the court to have given a multiple conspiracies instruction the only thing that the defendants hang their hats on in terms of arguing that there's there were possibly t conspiracies is the fact that the government didn't prove that mr simon and mr stanton sat together and talked to each other and knew each other i mean that's basically what they're arguing well i think it's really a little bit different than that i think that they that they see that the fact there may be a claim of some type of wheel conspiracy but what they're really are going to spokes just aren't connected that what they're really looks like is there's there's there's players that are and in different conspiracies but they are in fact different conspiracies with different objects different ends different participants in that you can't really say that this is the case that that there's an nuff evidence that the jury ought to intuit that the wheels completed right isn't that their claim yes your honor but if we look at one of the things that the defendants do is they they they don't address some of the most powerful evidence that does connect all these individual documentary evidence yes and it did we have access to that it didn't remain under seal as i noted that you had listed some documentary evidence and i wasn't able to get at it to see to see what is if you could help us understand what that is that you think is so strong that links the to your honor and also if for some reason they didn't submit the whole record want to submit the whole record or check into the please i will your honor we  double check on that but all right so if the easiest way to do part of this is to turn the page fifteen of my my brief because that list specific checks and  very it's the most probative evidence we have so if you look at i don't think anyone is disputing that mr speace say and mr sampson started doing checks together back in two thousand and nine mr stanton doesn't dispute that he was involved about doing checks right everyone agrees and that supposedly is the two different conspiracies but if you look at what mr simn actually did once he got out of jail he gets out of jail in march of tw twelve ok one of the things that mr simon did before he got out of jail he met kevin fitzgerald who actually had a real job in a retirement account before he got a bunch of and landed in jail with mr smiley kevin fitzgerald gave m mellon came from kevin fitzgerald and his only connection was knowing mr someone in jail he remained in jail after smom was out three weeks after mr some on was released karma county jail mamadou ceased they deposited a counterfeit visit checked into his bank account and mamma used to say look at that check at trial and said yeah that's my we had a picture of him putting in his bank account he said i don't remember where i got it or that account but that's my that's my check so that's the visiting connection between directly between kevin fitzgerald and m wells fargo opens like five different accounts in a in a five day period basically a personal checking account and then some linked business accounts and these are the checks that he either pash or had in his pocket when he was arrested at t c f bank he had a check from he had three checks that were the pay or account was b n y mallon which is kevin fitzgerald retirement provider account he had a check that was supposedly written by west far all sales and he had a check that was written by n d a marketing those with a victim bank account that same month a week after mr some mine had those checks at wells fargo and t c f andrew bates was arrested cashing n computer the time dates for that that's right that actually the it was unclear how the st attack software exactly what it didn't what it didn't save and frankly when mr c say testified he didn't really know exactly how the and the information that was in it they didn't know if i mean he admitted he had been using the software for years different versions he didn't know why some you know if things what got overwritten or what but basically everything that was in the verse to check that we  covered had been saved you know within the last couple of months prior to us recovering and so there's no evidence i mean we had checks in this conspiracy going back to two thousand and nine visiting did not come on the scene and that they're signing up to do checks you know or do whatever the whatever the conspiracy or the scheme and if you look at what judge mongomery said she said well you know what was it the same means  same method of doing things i mean they were stealing victim bank accounts and connor you know and putting false signatures on those and cash them at banks they were using runners and it was what i think the standard is for when this instruction should be given how is the district judge supposed to decide when to give this and struction single multiple conspiracy instruction i think that the court should give it it when there's evidence that possibly should give it doesn't mean that it's error for the judge not to give it i think what you're trying to say is that the judge has discretion and when they look at the evidence that sitting in front of it does and the question we ask is a district judge always the same and that is does this fairly raise the question and if you perceive the question as having been fairly raised in the evidence being in such a way that reasonable jurors can reach that conclusion as an actor discretion you male elect to give it or you might look at that same evidence and you say gosh i'm not quite sure it's there in exercise your discretion and say i'm not giving it and this looks like that was one of those cases where wobbled on the edge the judge's answer was i'm not given the instruction but you're free to argue it now they argued it and all of a sudden they get a question that's when i you know as a trial judge all of a sudden all the bells and whistles are going off in your brain and say now what do i do do i give the medical jury multiple conspiracies instruction or do i do say you have the instructions or do i say i want you to go back and look at the charged instruction in the indictment if you look at the trial or the charged in a conspiracy in the indictment that will explain it now in this case judge montgomery elected to say you have the law that you have now the question that i've got having made that election why is that not in abus discretion in light of the question do you get what i'm saying i get what you're saying your honor st of all i think that trying to interpret what a jury is struggling with by a question is  that's a difficult exercise that we're i do tea leaves all the time that's a whole trial world you know when the question comes you've got to read the tea leaves one way or the other and i understand that there's a school of thought among some judges is that we try not to answer any of the questions to say you have the law you have there are other judges and i was one of those i was more inclined to answer the questions but i think that's a discretionary thing in i think in the great big bell curve the judge has the choice so the question for me at least personally i nor anyone else is going to think  becomes like is this question so pointed that you had to address sort of the elephant in the room and you obviously think not so i want you to tell me why not i don't think so your honor because another interpretation of that question is do the jurors really understand that the conspirators don't all have to know each other well they say because we told them that they're well you know again the jury thing may be wondering do i have to do do i have to connect saddam simn to that problem if you if that was their question to all these conspirators have to know each other that's not going to be answered either way with the multiple conspiracies instruction now as opposed district judges sometimes on the juries back to the original instructions because they're concerned the jury's main out of study them carefully enough and really discern the answer that's there absolutely i have i feel like i've personally observed that many times your honor but i i also do want to note that even if the court you know should have given this instruction even if which i i absolutely just don't think there was any evidence to support the court the notion that there were multiple conspiracies but even if the court should have given that instruction there was no error by not by not giving an instruction because the evidence was so strong about this being one unified conspiracy  and i don't understand that even if the court should have given the instruction there's nowhere and not given the instruction that's right so i mean to say the court should have given it then if it's not an error not to give it well your honor i believe that the standard is that the court looked at was it one of the charges or whether all right i'm sorry well now even if even if you could say the court yeah maybe maybe the court should argument well that's there are now the question is it's got to become a harmless at that point or we've got to fix it right i missed something right your honor and there's no and there is there's no harm that would have resulted from again there was no basis to give this instruction if mr mind can participate in this conspiracy at all it was with the help of mr c c a which we have direct evidence up but you know our cases seem to say if there's sufficient evidence to show that it was one conspiracy then it's not error to decline the instruction that's different from saying if there is sufficient evidence to support single multiple then the court is supposed to give the instruction which is i think the position you started out with but i think the case law is actually even less helpful the defense than trying to say is the court could have given that if the court felt like there was evidence to support the multiple conspiracies instruction could have questions whether it was required i don't believe the court was wired to in any case but certainly not in this case you want to address any other issues in your two hundred and forty five or do i do have a question if i if i could on other issue and let you wanted to address something that the defen concerns from the defendant on that conviction the issue of law and if or deceased and also what about the knowing aspect of it what evidence did the government present to show that the defendant knew that that identity was of a real person so there's a few different pieces of evidence one that i think is it is sort of implicit throughout mr simmons conduct is that when you go to a bank and you open an account you give them you know they want your information they want name they want social security number etc and so presumably  some man knows that you can't just walk into a bank and make up a social security number and get a series of several accounts with a made up number so presumably he is nothing as the bank is was there evidence that the bank would documents we recovered was an alien registration card that appears to be and the jury saw this but appears to be a real italian registration card in the name of the victim of the identity theft with this picture on it and also social security card in the name of the victim with with the social security number that mr simn had used but these are real you know these are real document but it seems like all there's all sorts of times when people make false documents just like the ones you describe so that they look real here i've got two in and alien card with a photo and i've got you the social security card with a number and put those together and that's going to look really good i'm just i'm i just was questioning whether there was much in there to show the knowledge on the part of the defendant but the documents that were recovered your honor the alien registration card had a picture on it it wasn't a mine it was someone else's i d card so some on had gotten a fake minnesota id card that had that same information on it but had the data birth and name of the victim with the mom's picture on it so he took presumably a real alien registration card real social security card and use those and from that information it's not like he had no need for him that was the alien registration card with his picture on it it wasn't his picture on it so you know if you compare that to the case that mr some of this this figure a case where the court that was where the court determined you have to know it's a real person right you having the card that was seized showed the picture of a different person yes the alien registration card that he had and what document had the defendants picture a a real socialistic charity card an alien registration card that matches the a file that we obtain from the department of homeland security in the jury also saw that and that's how you argued the case to the jury yeah i mean but  the person was an undocumented person who was working without and using someone else's social security number and he argued i just got bought this number from someone i didn't know this was a real number and you can see it in that instance where if you're just buying in a series of numbers from someone maybe you don't know that it's belongs to someone but not when you have their ilian registration card and social security card in your possession thank you your honor very well thank you for your argument the case is submitted in the coral file an opinion in due course thank you to all counsel