kind of dress the procedural background so a little bit the an unusual case because there are two sovereigns that are involved in this matter first of all what we have here is an incident that first occurred on september third two thousand occurred is that the commonwealth picked up charges basically cultivation of marijuana mr shanklin denied these charges he maintained a not guilty plea  of the underlying cultivation offense however he was not found guilty of a firearm and handsome and that trial occurred i believe it was on march fourth two thousand and sixteen so two and a half years after the original event so there was a the commonwealth of kentucky that sovereign we then proceed immediately to the second sovereign the united states getting involved and what they did is they pick up the firearm charge charging he was convicted he was then sentenced to sixty three much let your theory of the so we have this tipster law you know the nature of that law so we all get the law how that works you know for the sake of our i mean i guess i presumptively hurts you but let's just put that to the side what's what's the theory what what was the idea that the tipster placed the gun so that the idea or the got what was through the case again from looking at the motion to disclose i do believe that that was indeed the theory that was put forth that was so but the tipster is going to how strange because the tipster doesn't refer to a gun so the tipster says there's drugs being grown there why if he's trying to set up shanklin for gun possession wouldn't he say there's drugs there and he's got a gun if that's that just doesn't make any sense if that's the theory of what the disclosure of the tipster would have shown you know i understand the question i think but what we know is that in a court did characterize this person as a tipster and i understand why they did so it was not a situation where it was a hand him by any of the cia involved and clearly it was a confidential informant and not a considerable we have here in a very small house as the government made very clear both in the trial and in the appellate brief that there was a man or the there was somebody in that house we know nothing else we don't know whether or not mr shanklin is in that house with them we know there's a small four room house where there was information provided that there's a grow operation where was the grow operation in the house my understanding is that was largely in the kitchen is my understanding but again this was apparently a four room house only one bedroom you walk in there's a living room there's a bedroom apparently off to the left for the back of the house there's a kitchen and but the firearm was in the bedroom on top of the nightstand that is correct your honor that is you know and again i go i would push back slightly regard to the testimony by the detective on the firearm but that's what's presented to the jury and the jury convicts so we have to take that as a given right in regard to sufficient c of the evidence yes  would they then say hey there's just drugs the whole lot of the whole mission was to get him convicted of the gun and if they play if he planted the got of course that's the mission he didn't he didn't plant quote all the marijuana plants he clearly planted the gun who would say not point out there was a gun there that just doesn't add up your honor unfortunately i would have to say that that perhaps isn't the only theory that could be law enforcement you know fortunately we live in a time being observed by police during that forty eight hours from the record i cannot say that it was being observed during that entire forty eight hour period and yes of course it could have been other people in the house during that period of time but again what we have here is we have a defendant who's saying it's not mine we have no forensic evidence tying him to the gun and let's let's remember that that there was an opportunity to fingerprint to do forensics nothing came back so he went to trial he was a fair trial and he's guaranteed a fair trial and the fact that he was not allowed to know who the confidential informant of the tipster was prevented him from having that fair trial this is unlike some of the president of the published president this court has seen in the fact that this person was actually in side the house diminished yeah so i mean what we have here was is this relevant and helpful to the defense how could it not be you know somebody was in the house within twenty four within forty eight hours who provide information to law enforcement know we have that and is it essential to a fair ticket you would say given the promise of really are of the the norms the presumption should be one discloses confidential informants that should be the norm because presumably there will always be some evidence they have about what happened now sometimes i can be very helpful evidence to the defendant but there will always have some evidence well and therefore it helps to know who they are and what their motives are  whatever else and that's it seems that that really seems like the conclusion or perhaps every my choice i'm not asking the court to make that decision here today what i'm saying goes the balancing test i just want to know where the line is and i know everything you're saying seems to point pretty strongly towards the norm should be disclosed the confidential informant what we have here versus some other situations where you have a confidential informant who's doing and a hand by who's being monitored that firearm and there's nobody he can he can call on to testify could he be forced to provide his own testimony of course not this court wouldn't want that to occur so what we have here is a very different you know this is a very fact based claim that we're talking about here and the fact base claims that here this bill and other defense that he has he has nothing else he says not mine yeah somebody else and i tried by that i mean he has the detective and he gets to cross examine the detective and make sure the detective isn't making a mistake so that's that's pretty fair game and then something it's his house there's an awful lot of evidence that would suggest he spent a lot of time the including photos of him in the house he has reason to figure out how this gun could have been there and he those are two pass he can pursue i don't think it's fair to say he has no options i would say is h options are limited or or for clothes when you know there was somebody in the house within forty eight hours you know who was looking and trying to you know provide information and what were the motivations of this individual all we know is that he was a reliable c i he had done this in the past ok and this according to the affidavit if we're to believe the affidavit so here's somebody that does this regularly who is in the house and who against as they found a firearm you know but again that he could he could have had hypothetically family members or friends who would testify that they had been in the house and they had never seen  gun or that they had been in his bedroom and they had never seen a gun right that wouldn't be self incrimination it would be that he'd have visitors know somebody may never have had visitors especially in the  officers are self serving just as regular people are self serving and so yes there would have been some other ways of denying yeah the negative yet and it wasn't there was there a better way we would say that was not thank you thank you of fairness and i think that concept drives the courts analysis it drives the analysis and all of the opinions that speak to  the privilege of the government to not disclose identities of people who provide information to police the the bottom line here is that this was a fair trial justice was done that is reflected in the record it is reflected in the district court written reasoning on the issue it's affirmed when the court surveys all of the authorities that have speak and that have spoken and particularly in the six circuit to this issue that the defendant's claim the defense argument is it's based on speculation and nothing more what's what's he go do course he has to speculate and seems that's those one part of your argument that i don't doesn't seem certainly you know doesn't seem very fair what else is he going to do here he has to speculate if you're not going to tell who it is will have two responses to that the first one is that fairness is is something that is defined by definition it is it is fair when we follow the wall  and in this case there are a number of opinions that touch on situations where a defendant makes an argument very similar to this but what if what if the tipster slash confidential informants information was that i was in the house such and such day i saw marijuana plants growing and i saw a gun next to the bed on the bed stand and then that's when the detective everything else is the same about the would why now now we have a witness a maze you know you want to get to cross examine this witness i would point the court to the case united states versus beals it's a six circuit case and the facts were similar the c i had been inside the defendant's garage and later informed law enforcement he's got a gun in there that police use the cia's information they use the the  tip to obtain a search warrant a search of that garage yields a gun and evidence suggesting drug trafficking the court in the beales case distinguishes between informants who helped orchestrate or set in motion a fruitful search versus informants who helped orchestrate or participate in the crime itself and there is a distinction between the two of those the in the beales case in this case there's another case from two thousand and fifteen it's united states versus ray where again the court addresses informants who supply information that the police rely on either to initiate an investigation or they incorporate that information into an affidavit to obtain a search warrant both of those opinions held that disclosure was not required because the informant in that case was not a participant in the crime did not participate in a controlled by or any sort of underlying transaction and  there there the information that that person possessed was simply used to obtain a search warrant and further an investigation and that is an important distinction because the concept of fairness that's driving all of this also encompasses the balancing that has to go on and i want to i want to ask a question about that the way i read the cases is we're supposed to balance the defendant's entrance interest and disclosure with the government's interest and confidentiality did you articulate any specific reason why you didn't want to disclose the informant's name over and  above is just the joint generic reason of concerns of protection protecting the witness or were there any informant specific reasons why the government want to disclose in this case if i could answer that question in two parts the first part being i don't know that it specifically spelled out in my brief but i do know that the affidavit supporting the search warrants in this case the detective states that the informant is concerned for his safety and wishes to remain anonymous and that affidavit is part of the record i believe its record entry twenty nine dash two but it's just a generic statement of concern for require more than that that general concern for the safety of informants in tipsters it that is the reason for the balancing need for the information and the potential relevance of that information is enough to tip that balance this is not one of those cases can you give us a case where it has been the court held in that case that the privilege and the interests of the government underpinning that privilege were outweighed by the defendant's need what happened in that case was there was a confidential informant who introduced and forgive me there was a confidential informant who arranged to purchase narcotics from the defendant in that case there was an agreed upon location where they met the informant drove his personal vehicle to a location there are police or agents in cars vehicle in front of the vehicle and there's an agent in the trunk of the car who is able to listen the defended the officers conducting surveillance see the defendant drive to the location get out of his car get into rivera vehicle or the get into the cia's vehicle they then drive around and they drive around in a way that indicates counter surveillance and the officer in the trunk even here's the defendant tell the cia to pull over so we can lose this tale and that testimony was given at trial by the officer who heard it eventually they pull over the officers in the other vehicles see the defendant get out go over to a tree pick something up walk back over to the vehicle toss it in and they leave and then the defendant is of course prosecuted tried convicted of transporting heroin that was the charge at the time in that case the court found that the c i had to be disclosed in the interest of fairness because first of all there had been defendant was driving in the same car as the c i there right yes so so ok there was testimony at that trial regarding  conversation that the defendant and the c i engaged in but of course it it's coming through the mouthpiece of a detective so that raised concerns regarding the defendant's was in the package that he picked up and the c i being the only other person that was party to that transaction the court found was a necessary party to to give testimony on that so why wouldn't there be a parallel here at least in that the see here says he was inside that the small house the four room house and the c e o says that he saw marijuana plants growing and that's put into the affidavit for a search warrant the search warrant was executed within forty eight hours and the police go in and they find the plants fifty one plants apparently in the kitchen and they find on the nightstand the gun so the theory of the defendant is it's not my gun and somebody put it there and we know that a police was in the house and he is the most logical person i need to know who the cia is in order to examine him and find a whether you saw the guy be whether he planted it obviously you have to figure out a way to make somebody confess it seems that this is the only way that the defendant can prove this defense and your i would point the court to the line of cases there's the us versus shar they all address similar situations where the diff the defense theory is either entrapment or i was framed and i think this person might have information that helps support my defense  and all of those cases are clear that just he might have that information is not enough can you give me an example of what you think might be enough what so our case clearly so for in the speculation of freeman is insufficient but how do you how do you overcome the speculation hurdle to actually do you have to present like an affidavit with your motion well providing some type of concrete evidence like i like a probable cause standard that i had him i might have been framed like this so what i'm just trying to visualize what are our cases when they say conjecture isn't enough yet what we mean by that and what would be another year well and i think if i could just play with the facts of this case a little if in this instance there had been any indication first of all that the c i even had knowledge of the gun that the affidavit references a c i tip that the defendant has marijuana in the house and the affidavit doesn't actually state that the c i was inside the house it says the cia observed the marijuana so it's possible that there was a drug transaction at the front door or the back door we don't know that if we knew that would get us closer another another factor that i think would make a difference is if we assume that this person was inside the house the evidence was pretty clear at trial that the defendant was the only person living there there was no evidence of any other resident there was one bedroom or mail for somebody else there there there was your honor there were a few errant pieces of what looked to be like commercial mail so it it it it  well i we don't know that he doesn't that he doesn't say why would he if you if you see evidence of wrongdoing who mentions the marijuana plants without mentioning the gun hypothetical where we assume that the c i was in the house the defendant the sole resident of that house would be the person in a position to at least narrow the field to know who had been over in the last forty eight hours who had access to his house the defendant made no showing even close to saying well i know it was one of these five people and i want to know if any of these five people have relationships with the with law enforcement i want to know if any of these five people have c i files that's more than speculation to address your point your honor in in this case again we we do not know whether the c i saw all the drugs from the back door and had no opportunity we don't know if he was in the house i'm assuming he was in the house as were you if you doesn't report a gun doesn't told an officer that then under brady the obligation of the police of the defense of the prosecution would be to reveal that the c had not seen it is that is that a correct statement of the law that if this had been in a place where the c i could have seen the gun and did not see the gun yet said that that  actually to the effect there was no gun that actually helps in a weird sort of way because it shows that there are some limits yes i do i think we all agree under those under those hypothetical revealed no because i believe that that falls more in line with the facts in the beales case  thank you thank you again your honour's again what we want to point out here as the court is i pointed out in the prior line of questioning is what else could mr shanklin have he doesn't know that the cia is what your take on whether he was in the house i would say it's likely that he was in the house as well because again the affidavit says and that he saw realistic assumption to make compared to you know of somebody who came in for a drug transaction or some other reason and saw some things in there and saw an opportunity or anything else in the  affidavit about whether suggesting if he was in the house he saw all of the inside of the house or there's nothing really to that effect if there is a bare bones affidavit it truly is and why it wasn't challenged on other grounds i don't know but it wasn't about or about brady you know we never know we don't know who this person is we don't know what that person knew yeah so we don't know if he saw lights or she saw it saw a fire if she didn't see or didn't know  was in the house and said that she or he saw that that would not have to be revealed but it would have to be revealed if the c home here so you know if so i was inside the domain of the home so a firearm and that that was not provided in terms of the affidavit than would think of that would be that that must be disclosed even though they're not using it as evidence in the trial what what requires them to disclose under your view to what would require them to disclose it you know i think there's a principle of you know of fundamental fairness in regard to what was you know observed and should've been provided to the  judge who was deciding whether or not to grant the search warrant in the situation so you know that there was enough in the search warrant to grant nuffin the search warrant affidavit to grant the search because the what we're asking of course on behalf of mr shanklin while we have three islam is a fair i think we've honed in on the one that is most important and we are asking for free man with the order to disclose a confidential informant thank you thank you mr kidd we understand that your appoint pursuant to the criminal justice act and we thank you for your service to your client into the service of justice thank you both for your argument the case will be submitted and with a clear call the next case please