my name is david shuster i represent the robert three jr with the court's indulgence i'd like to focus predominantly today on the one sub issue that permeates all three of the issues that we've raised in our briefs and that is  your code the government's omitting to disclose mr code is fourth amendment waiver and the fourth amendment waiver of his than live in girlfriend susan zimmerman now in a nutshell  is the court can tell from having reviewed the excerpts of record in particular the sealed affidavits that we submitted involving five of the excerpts of record the government did not spare many investigat expenses or resources in the course of conducting this investigation into international methamphetamine trafficking from mexico into the united states so it is particularly surprising in light of that  one of the easier facts and one of the more important facts that the government should have been included in in those effort is specifically referring to the the july seventh two thousand and eleven supporting affidavit from special agent jeffrey grooming what mr granting what agent grinning should have included in that affidavit and he did with regard to other targets is that mr kota and misery man had fourth amendment waivers which would have allowed the government it any time via probation authority in the state of california to conduct unannounced warrantless searches of mr residence and his possessions as well so why is that material given that the affidavit did say that physical searches would have been counterproductive well your honor the language regarding physical searches was either very broad or general too nonspecific under this court's case law in black and and consults incorporated and to the extent that it did discuss fourth amendment searches regarding julie peterson who is purportedly buser code is principal supplier of methamphetamine and another target named garcia special agent grooming disclosed that the fourth amendment searches would not have been fruitful because there was no knowledge that the that those two individuals actually spent any time at the residence that the government would have liked to search well why would that be necessarily be a bar to signing the warrant it's a fact that would have shown your honor that traditional investigative techniques were still available and could have been conducted without needing to but that wasn't the point of the warrant to look at the conspiracy as a whole it wasn't just to arrest mr coon i mean the point of the warrant was to get to the whole drug smuggling drug conspiracy theory and we had knowledge on her that there was a sweeping conspiracy the government was looking to investigate as black men cases such as black men and gonzalez incorporated emphasize the phone complete disclosure of phone complete statement and the necessity requirement twenty five eighteen three c need to be says by regard to each target not regard to the investigation as a whole are you saying a wiretap can't be issued and when one of the potential evidence regarding mr codas purported involvement in this conspiracy is there any question that the district court would have understood that a search warrant for the home would have been possible i mean i'm not even sure why it matters that they could have had a warrantless one when they presumably could have gotten a war like with the the stop and seizure of mr code as a vehicle on the evening of july twenty fifth two thousand and eleven which was done on a pretextual basis the goal for the for doing the i should say the underlying rationale for doing the pretextual search would have been to make sure that mr kota and ms zimmer were not aware that they were part of some type of broader international drug conspiracy investigation and so by having a parole officer conduct probation officer conduct the search as opposed to someone involved with federal law enforcement that would not have tipped them off and how would this is all search have told them about other well it very easily could have disclosed peo sheets much like the ones that were seized from julie peterson at the us mexico border it certainly could have disclosed other documents that linked other people to the conspiracy and certainly it would have you putting a lot of stock into the idea that criminal conspiracies keep good written records i mean a lot of this is intentionally designed not to have good written record best case is in this area generally or blackman and gonzales incorporated regarding the need to make specific disclosures of material facts that concerned whether amendment waivers your honor and we did know and we did distinguish this court's recent opinion in united states v rodriguez which did deal with the fourth amendment waiver issue and we've distinguished that because that case dealt with the mexican mafia  conspiracy investigation which this court held that you know as your honor mentioned in that particular instance there was not a thought that there would be any documentation probative to the conspiracy this of course is a more of a garden variety narcotics distribution conspiracy one for which searches would be one of my concerns is people who are the subject to wiretap applications often have prior convictions with search conditions and  you seem to be edging towards a bright line rule that have for some reason the government doesn't disclose the application can't be approved yet here i i just want to be very clear i'm not advocating a bright line rule i just am arguing that under the facts of this case one of which the investigation was was quite successful for the government as of july june and july two thousand and eleven that the fourth amendment waiver is something that should have been disclosed on top of everything else so  good morning your owner's man please the court mark rey he for the united states i think the panel me understand what our central argument is and is namely that there was no materiality to this search condition excerpt of record ten eighty two in this is from the july twenty of the july seventh affidavit agent grooming expressly averred that they even with extensive use of traditional investigative techniques in conjunction with prior interceptions we have yet to identify significant participants in the criminal activity and it goes on and this is the critical part or a single location being used to store methamphetamine for more than very brief periods of time and i think that that in conjunction with agent dreamings a variance about why searches in general were not being utilized satisfies o reasonable judge would have denied this wiretap affidavit or application on the basis of that alone the storing of the math wasn't really the issue so much as identifying the other people right what little of both you wonder exactly at that point i they are still also trying to find narcotics and i believe even in the june the twenty a live an affidavit when agent grinning says that there had been no stash else was found so far they were looking for it i think there was discussion of somebody who had buried something in their backyard but it didn't pan out so i would only bring data to indicate that it's not as if they were completely ignoring this tactic these weren't just bare boilerplate assertions in when they had prior interceptions i mean another point i want to make that i know my pony in one point said well when they finally did executed search warrants and there were three properties the fifth street residence the mark waid court residence in the regal street warehouse they found a lot of evidence that actually i would disagree with that this was a conspiracy to distribute methamphetamine no methamphetamine was found in any one of those locations instead there was a lot of marijuana there was packaging material so that you know and also that comes after the fact i think it's still important to know because on this record this was not a historical investigation where warranted searches were turning up a lot of evidence in fact i know my opponent also said even by july of two thousand and eleven the investigation been quite successful i mean a couple points is this i just jump in for one moment so channeling my district judge colleagues for a moment why didn't the agent just tell the judge looking at the application that there was a suspicion a search condition and i wish i knew the answer that question and i'm not hiding anything from you this was litigated five years ago for reasons unknown it's not clear from the record we just don't know and as mr solicitor points out it other points in the affidavit when there were fourth waivers the agent did refer to them so i don't know maybe you think that cuts both ways i would tend to indicate it's when they're aware of it they pointed out and i mean there was an interview there is no evidence the agent knew and chose not to do it correct and i think our position below was i think the parties almost basically assumed there was never any dispute that it hadn't been disclosed and so that was another reason why i don't think the denial of frank's hearing was significant because the parties basically assumed that that was the case of the only question is materiality is this court knows from the evil legal decision to materiality is review de novo so this court can sit in the same position and make that that that finding it again an excerpt of record ten eighty two says we have yet to find a single location we have yet to find the identity of major participants in this was a conspiracy and i guess the last point i want to make is this court's aware i believe we cited cases mcguire rivera is well settled that the government is entitle to more leeway when they are investigating a conspiracy and that's exactly what this was and believe judge gould wrote the opinion in rivera with the mcguire with the colorful analogy  conspiracy is like a hydra from greek mythology you can cut off one head but then there's still others they can pick up so when we look at this as far as the reasonableness and again the necessity is a whole is reviewed for abuse of discretion based on the information here this was a wide ranging conspiracy all these facts were detailed to the issuing judges the government would submit that it can't be said that abuse of discretion happened in this case are you arguing for a bright line rule that whenever you're investigating a conspiracy you can get a be repeatedly side in every one of the conspiracy cases it's just something it's almost a prison it's not like deference but it's you basically get more leeway when you're talking about a conspiracy and that's exactly what was going on here i mean the fact that in june thing but that's not true it originated in september two thousand and seven with controlled delivery i believe of twenty one kilograms from mexico the sources of supply angel was the source of supply for julie peterson has indicated that there were two rival cartels i mean this wasn't just something that was happening on the streets in diego and so i think that's a factor to take into consideration maybe in a hypothetical future case somewhere in the middle bakersfield i don't know just  scheme also regarding franks i just want to emphasize to the court that we're not arguing at this stage that special agent granting intentionally withheld information about the fourth member waivers of course we only need to make a substantial showing that at a bare minimum there was recklessness in not disclosing the fourth amendment waivers in his affidavits and we think that and this he wouldn't know about it would show the recklessness  recklessness would simply be just not following through on standard law enforcement invested tory techniques in how can that be reckless and that just sounds like negligence and most i mean recklessness has a higher man you know higher mental state and you knew or should have known just failing to look at and another page of the record can't be reckless i mean and we acknowledge the those facts are correct your honor that most likely would be negligent suppose recklessness but that's why a hearing should be necessary just to  find out exactly what special agent grooming did or did not do at that time particularly given that he he had correctly identified other suspects other targets as having those waivers is he that i'm over my time the court does not any further questions because to submit thank you both sides for the helpful arguments the case is emitted