yes good morning panel my name's thomas broun i represent jump and wag we're here because jonathan wagner was maliciously prosecutor by officer warner and the north burke's regional police department he was the van so at least with regard to that anybody let me put it this way or we're both charges did both charges stem from that same episode involving the one thousand packages they had when you say both charges will be discharging time of his arrest he was also a found in this van with a bunch of other parcels correct that is correct and then the two thousand and fourteen charges with the charges based on those other parcels correct the original a bunch of other packages that was stolen at different times from different victims correct correct but all but all located in that one van so the receiving stolen property was all located there on that day so in terms of his receipt or early you know  charged with receiving all of the parcels and on the market for the two thousand and thirteen conviction for the receipt of stolen property charge but the receipt charge just with the one package receiving stolen property for their receiving stolen property know and i would like to point out to the court that at the criminal trial where the trial judge this dismissed on double jeopardy grounds he specifically said in the record i'm familiar with this police department and i'm familiar with this officer a police officer is duty down when you're doing a probable cause assessment to also know and consider complicated legal defenses or legal preclusion such as double jeopardy the compulsory joined to rule in pennsylvania i don't know that it's complicated i believe since going to the seventy's the double jeopardy concept has existed you know but even that pennsylvania court system has described it as it being difficult and a difficult issue to wrestle with and the statute itself the compulsory two hundred dollars will puts the burden on the prosecutors awareness of the other other charges not the police believe what we blame the wrong person you know we're blaming the police officer who went over and above back in january was the date that he had made in may what happened is that the investigation identification of all the packages and who the rightful owners are completed in march before the march conviction or before the in the original but the issue here is the existence of probable cause facts to show that a reasonable person would think a crime was committed by the individual at issue there's it's without dispute that there were facts that showed this individual involved in facts and therefore committed violations of pennsylvania law so probable cause exists your challenge is that that probable cause determination to somehow be  did by the prior conviction it was the same probable cause and that everything should have been joined together constitutionally and then once you've used it you can't use it you know a nd time you have the exact same facts for the president discussion i'll assume you're correct but doesn't isn't officers obligation to me probable cause determination to consider affirmative defenses our court has already said things like is not something a police officer needs to consider necessity is another defense police officers need to consider why if we're not going to require as a matter of our own precedent an officer to consider those sorts of the firm it offenses how can we then impose upon an officer to have to consider the compulsory jointer rule particularly when that rule puts the onus on the prosecutor well i would just say to the court that the trial court judge said what the officer should have died is to have alerted the district attorney's office and the prosecutor let them know what the issues and let them make the decision don't go you know off the reservation if you will don't go making your own determination especially where you're cherry picking information  when you have it from before so if you do that and you do it with you know malice and as this because this is probably since we haven't had an opportunity to even explore that piece of it as to what the officer knew and when he knew it although we do know he knew about these are complicated issues which i in this case i don't think they are complicated but they are complicated his job and a reasonable officer would go to the prosecutor here's what all the information is you sorted out now i'll go back to my police work on the street can we say that sixty nine is an insert poor from brian warner where he summarizes his interview with a coconspirator may th two thousand and thirteen keep in mind that mr wagner was st caught seen stealing packages in january january t and then you move forward and the investigation does go forward in reality may two thousand and thirteen is when detective sergeant brian interviews the coconspirator the coconspirator caught him up and gives probable cause to arrest him on the multitude of other steps we say good move this fest not involving the what was in the been corrected jane with me thirteen i would like to make this clear nowhere in the complaint the plaintiff in this case does not allege that he was charged with the same crime he is brought in a novel theory i've never seen before in representing police departments for twenty four years where they're claiming essentially that the same criminal episode vitiates probable cause to arrest him on it's charges for which he was  have enough information to charge the defendant at that on but that one package that he was charged with this is a package that came from the vending which there were nine thousand packages located that he had been seeing an off duty police officer had seen him take that package from a residen so that's the difference you're saying that for the the episode in january th two thousand and thirteen there was a police officer i witnessed you saw the theft occurred jackley there after a van with a bunch of other items were found it wasn't until may of tw that they could say mr wagner was responsible is additional that's exactly that's why this is not a double jeopardy now saying they had the same damned and same then you're just saying that the van had items but at that time but right it's your position that the officer did not have occur and the police the individual stopped or did the parcel that was observed to be taken and up in the van right that's what your question is yes well i don't know that it came from several packages  in other words that one parish it was used for that initial charge came from a video in which there were several packages that's correct that's correct and one on this theory though he could be charged multiple times for each one of those packages your honor i mean the u s be sentenced to eighteen time under the united states constitution that's correct which that is correct now certainly we were not going to do that there's a compulsory jointer statute in pennsylvania it's going to deter that but the point of the matter is like my officer has is and that what the what pennsylvania law will say is that of course it is tied to the idea and the concept of double jeopardy but our u s supreme court has rejected the idea that double jeopardy arises from similar similar criminal episodes we're not just talking about the same crime right where we were not on the about a number of crime trying to get out we talk about the same criminal episode there for a while because that's the issue and i frankly i think the criminal trial court cut it wrong we're taking a look on the same day now these are multiple instances ready ok and i have and i hear you but when again we're talking about malicious prosecution under the us constitution under the th amendment the play to pass to establish the black probable cause that the office had malice and that he perv ailbhe here in this case the plane to prevail only because of the state law rule a criminal procedure that a state law the judge found all of these instances constitute the similar different police officer if this action were brought against the nd police officer based upon the arrest in january rd the discovery in january thirteen by different officer that would i think be a good argument but this is a very different situation where you've got criminal double jeopardy law the civil laws more generous seem transaction were seen criminal episode tast if they never go if you have multiple let's say a drug sales you have a drug dealer in the street corner he jr what about double jeopardy well there's no case out there that would place a police officer on notice and i usually don't start up with qualified immunity but this is important this is why i did to think that two lawyers to deal with this plus the court are arguing about this today shows us that this is not clearly established ok st of all and i think that surgeon who are is entirely the qualified immunity at the very least but to put to get to your question i think that you look at each crime for which they are accused so long as that the police officer at the time the charges has belief that that person committed the crime probable cause it's established very malicious prosecution cannot be shown is mr wagner beat the rap no one in his courtroom the scene he didn't do it he was acquitted based upon that that home has been a little bar but i'm talking or out if there is a legal bar to repetitive for profit repeated prosecutions that wow would stand alone as separate offenses nonetheless are being brought one after another after another until the special intentions concludes right what's the remedy for a defendant who faces that he sat in existed and that an officer is not required to consider affirmative defenses like compulsory jointer or double jeopardy even though that officer knows about other facts that may show this is like the same  before that your position i am and i was i was before this court not long ago on whether affirmative defenses and criminal statutes addition of probable cause and i would submit to this court that in the rd circuit that's never been found that has been entertained by this court and packages were in the bay and back then he pled guilty to one i can jerk around and charge him with another i would concede this if they if the officer charged him with stealing the same material for which he pled guilty we'd have a th amendment problem all day and you know that where's my client has been charged and civil rights violations they have to prove their case they come woefully short they say he should have a remedy but not this one i'm not making a judgment call crankily i think that my office tracked a recently under the circumstances judicial determination that it should have been compulsory turner was made after the fact is made after the fact now you know if if if the officer tried to charge him with a crime after that had been dined we might have a different problem prosecutor you know prosecution i think that the direction should be to the d a s office in pennsylvania the police officer has probable cause he files a in affidavit probable cause with a neutral magistrate they ha to go down that road i mean literally you can have multiple charges on separate occasions involving the city memphis and that's where i see the problem i understand your honor point but when we read the case law the body of law does not address this this is novel all day who the facts are grown ups and that's what's so different here well look there are plenty of cases that address the garden variety double jeopardy cases where you know you can't charge the same crime arising from the same circumstance twice that the dissimilar criminal episode is much different and is much different because it isn't the same event these are no fewer than six victims that are in the theater in the record no fewer than six victims all over by investigate all the mire there were people there different banks in different locations understood under your theory then we can have an entirely different cases for each one of those bank robberies i guess the question is where do we draw the line no court in this circuit or the united states has drawn a line personal address this head on or one but where do we draw the line of a theft and reading temple plan in hamburg dating back to december of two thousand and twelve all the way through the time he got caught in january  of two thousand and thirteen where do we draw the line he did answer your honor's question with a question but i don't have the answer and because we don't have the answer in titles my client the qualified immunity at the very least what i really stress upon court please what has been addressed before the rd circuit is whether affirmative defenses in a criminal statute can come in in vishy probable cause i think that's a very bad bad law and i also think it's bad  and that is if i may counsel and say that there are you know this is not the remedy well there is no other remedy except in one thousand a free action state law does not allow any remedy it is sovereign immunity for any act that would have been similar to this pennsylvania i believe that there might be yes i'm sorry in that in terms of this particular officer though in terms of what he did he waited even though he had this information and he  and we should be allowed to develop those facts with this particular officer i'm sure the you know the fact that especially since he did not probable cause still existed and exists in thirteen it existed in fourteen so so yes and that's a condition to have prosecuted him all at one time for all of it it doesn't change it this is public it's our position that the probable cause this is a paid after after there was the arrest the investigation we totally investigate everything except for the  the whole thing was with malice not even an omission but it was with malice of hidden with malice i think the facts of this case because he did not even prosecute him until jan or even though we had all this information for more than a year and potentially would jeopardize his speedy trial rights were you know for different things but at this point though the lower court judge listening to all the evidence specifically said double jeopardy not on any particular package but on all the packages that were presented in the complaint i think the to be bound by that that he and he knew which packages related to which event because you know they had the argument which unfortunately not required just the result was recorded on the record but all of them all the charges all the individual packages that were claimed in that nd complaint were dismissed on the basis of