good morning may it please the court my name is jim stewart and i represent mr booty the issues before the court today are whether the trial court erred denying mr franks based on testimony that was only purchase singular from that address that no informants had been seen had seen cutting agents scales or guns at lindsay avenue because there have been no controlled purchases there that mr moody it was not observed leaving lindsay avenue to travel to miss hogans location on march twenty fourth two thousand and sixteen that he was not present when this hogan purchased heroin on march twenty fourth two thousand and sixteen fact that the tech tive the affiant upon whom we must focus in determining whether frank serious is is is required not until she testified and become clear that she knew her statements were false so let me if if i can so i am looking at page fourteen of your brief and really what i'm trying to focus on here is the question independent of all of what is actually seem to suggest that that all that require you got to show that it's actually fall so frank's talks about the supporting statements of reasons for why it's faults and then you've got to show that it was material right it can't be you know they misspelled somebody's name it's got to be something that matters but if you do make those two showing us and then merely allege that it was either intentional or reckless you don't have to have evidence of that in order to get a franks here in that accurate your honor its record issue though is you know the defendant has to make a substantial show all of what is the question well under this court's formulation in white that it's a false statement and that it's knowing intentionally or with reckless disregard for the truth made and necessary for finding probably cause so the issue is to make a substantial showing of intentional falsity or reckless disregard you can't simply say i think the detective live and you can't simply because with one thing but if that's if that's true you almost never are going to have ranks here right like every franks hearing that you can think of is brought about to inquire to determine that's why it's a hearing not a temptation about whether the false statement was material and whether it was intentional or reckless disregard of the truth i mean if the standard really requires evidence and this is what seems hard to me if it were if you must show evidence of intentionality in order to even get the hearing that seems like an impossibly high bar for defendants to to yet the frank hearing and so yes that may help your client in this particular case but if that's the standard that we're setting it means that almost no other client that you will have will ever get a friends here your honor i would welcome the support showing based on facts that it was intentional yes it is your own and i think tape proves that this court's opinion tape where you had the police officer who went into the locked backyard to search trash cans that were not abandoned and if you look at the showing that the defendant in tate had to make he had to present evidence to show that there was no way for that least doctor to get into that back yard without trespassing because he was in the trash day when he went the gate was locked the person who lived in the house who was charged with the chore of the trash testified that he never put the cans out until the day of the trash collection that showed the intentional misrepresentation and the reckless disregard so that's what when i read tape and they had an intact but i don't recall the specific back to date what you're saying is they had to show all that before the court granted a hearing or in the year those were all affidavits and evidence presented with the franks motion and the take court said but for those showing of frank's hearing would not have been great should not have been through evidence or profit that goes to intentional misrepresentation or recklessness it's not enough simply for the defendant to say you know the confidential informant is lying therefore the detective lied because as we know if the confidential informant lied to the detective that's not enough if the detective that the tech is not required to verify that everything a competition foreman says is true what matters is whether the technician in receiving that lie knows it to be a lie or has evidence of unreliability of the informant and that is what the defendant has to show to even get the players here he then of course asked develop it prevail but the defendant this case mr moody when looking at the affidavit he has nothing to challenge those representations because if confidential informants have told the police that they've speak trol that he disagreed with the factual representations that were made each and every one of them and he didn't need any further evidence to know what he knew i agree with you your honor the problem hearing that the affidavit contains material emissions or that it contains material or statements he's got to make a substantial showing so under that scenario what is my predecessor do he files a motion with a proffer that his client would testify that he didn't sell narcotics and twelve the avenue he didn't meet anyone there to do so he didn't travel to meet mr hogan on march twenty fourth he doesn't have any knowledge about the officers that if mr moody needed further evidence he got it when there was test him there was no motion at trial and you waited until much later well he waited two weeks the two week deadline for rule twenty one rule thirty three motion now i would address that by saying rule twelve by its express terms deals with pretrial motions it says that certain motions out to be made before trial the reason why i didn't make it within two weeks is because he wants just an acquittal or a new trial he has to make that and the basis for his request for frank's motion was that this information should not have been presented a trial and it was without it there was not sufficient evidence to convict on counts one through five he was acquitted on six year fifteen and as a result he should either get an acquittal get a new trial so i mean that the rules the criminal rules they'd permit they think encompass this procedure it's pretrial of it's readily available if it's not then you are left with raising it a trial he could have done that he did not work right now but there were other confidential informants were there on her but the affidavit says yeah but there is no evidence at trial and it's not because the got one with the government put on any evidence of that there was no contest but here's the point evidence at trial to support those statements in the affidavit and in fact the evidence of trial contradicted statements in the affidavit and not until trial was that information  made available to mr moody so i believe the standard here is clear on factual issues and knowing the legal because you know this is this was a franks hearing request that was made in a timely manner under the rules and i've run out of time and i would  good morning your honour's may it please the court despite multiple extensions of the pretrial motions deadline in this case there was not a hint before trial began or indeed until well into the trial that the defendant blind misrepresented what the witness said there's no way he knows that if we try so there are two responses i want to address what the defendant knew and then i want to address at some length if the court will permit whether or not there was a misrepresentation here because there was a chasm between the government of my friend on the other side about whether anything untoward happened well let me try to understand that but i don't understand exactly how that goes to time so let me start with what the different so this court's precedents in wilson say the defendant has an obligation to inform his counsel of any colorable basis for suppression if the court looks at the government's supplemental appendix the post trial motion for a franks here is concerned essentially with alexandra hokum the defendant i think a fair reading of this court's precedents in wilson record group stands for the proposition the defendant was not there with those two women he had a what so there's a question of what showing has to be made the question i've got is does there require proof so did that affidavit need to include some proof or need to be some evidence right or offer of that it just seems i mean this is this case sort of well one part of this case returns on this question about whether we're required whether a district court is required to make a defendant have an actual showing of the mental state and you agree they do i do act now i want to be clear the way these cases are litigated in federal criminal district court is often out of an abundance of caution and to protect the record on appeal a district court may well three things all to the materiality and mental state right but what i hear you suggesting is that the district court has well within its discretion to grant such airframes hearing when only two of those are materiality i don't think as a matter of doctrine your honor i think as a matter of actual practice and trial courts many district court judges will grant these hearings when the substantial showing is not perhaps overwhelmingly persuasive you point is there's not a need to but you agree that the district court has the authority the discretion to have a franks hearing absent such a show not as a matter of doctrine i don't think this court's cases say that i just then we are not in a position to appeal the fact that the hearing occurred the issue on appeal after frank's hearing would be whether suppression was appropriate work that you think that would be illegal if you think two women to deliver narcotics yet an obligation to his house but there's another reason that notice here occurred pretrial which is there's a second probable cause affidavit detective roche authored the affidavit in support of the criminal complaint in federal court that affidavit too says that there were multiple controlled purchases between october twenty fifth scene and march of sixteen but it does not mention the defendant leaving the residence on the evening of march twenty fourth where are you going to you're going to address the timeliness in the sense that if it was untimely what's the effect of the if i may i ask just a few moments to address the issue of the light first simply because that took up a lot of time a moment ago the first purported misrepresentation is that the defendant was not present when the two runners went to deliver narcotics i'll give you the confidential in the government's view a fair reading of the record indicates that that may well be what the surveillance that was on the house relayed to detective shocking that page two ninety two of the joint and that's where she says i was not on the surveillance team and then she's asked but that's the information you were given she says yes so the only thing that appears to be clear from the record is that she was told that the defendant and never asked detective roche what were you told by surveillance about who left the house the defense counsel draws out the fact that it's not in his affidavit that there's no fall a partially about what the detective knew so the record in the government's you does not support the conclusion that that was defense counsel makes is to assert that because detective shoki said at one point that in which travel to other locations no informant ever purchased narcotics from inside the house in the government's you that is a strained and unfair reading if the court reviews the part of the joint appendix where that questioning is occurring which is page two fifty in the preceding pages the government's trial attorney is laying the foundation on direct multiple confidential informants purchased narcotics between october twenty fifth scene and march twenty sixth there is no information in the record at all one way or another about that a moment ago mr thorson something that really reveals what has which is that while your honor's the government never put on evidence to back up its statements in the affidavit but of course absent a pretrial motion the government's trial attorney has no reason to believe the probable cause is it issue in the case all and so what the government did here was crafty very narrow indictment based essentially on the testimony of one informant alexandra and the search on march twenty fourth two thousand and sixteen so the notion that post trial the absence of evidence can be used to indicate there were lies is simply not the way criminal trials actually occur what's more the record years actually clearly there was at least one more and that sarah breen there are multiple references to mr green throughout the record she is described as a woman who worked and signed up as before with police but was never used but importantly i would direct the court to the testimony of detective monte adjoint and it's one sixty seven and one eighty three because it goes to pages detective monte fix planes that while sarah breen was never used as an informant she sat with police before the search more was executed and helped police draw step on the issue of whether there were additional informants even still beyond muskogee and his brain the record is simply suck and this court's precedents again and again say that are franks here and will not lie based question of time this court's most recent precedent on the issue of timeliness and frank's hearings is the white from a few years ago this case is distinguishable from white in three ways the first so rico is a case in which there was an allegation that the government agents had improperly turned the defendants employee to an agent and there's no motion made trial which is especially untimely and inimitable to the interest of justice here and so to put rico next to white we think stands for the proposition that if indeed there was some revelation trial during the questioning of detective  trial as opposed to what happened in this case a couple weeks later that really make a difference because in neither case is a come our view there's a factual difference between the cases understand that  think to reconcile white with that position is to simply say that on the facts of white there may have been good cause for waiting until mid trial because the defendant was not actively well our way to distinguish way to be sure but i'm not sure that exactly honor is yes i said we think if you we rico alongside white it's a line that runs through the courts process and you would have to derive that from the rule plus haitian that's correct so our initial urging to the court is to join say there's no playing area there are a few reasons obviously the government would win if the court were to hold that there were no plane errors conviction would be a far but adopting a more stringent was there an error and in our view was there was not there would only be an error if there were a clear indication made that there was either an intentionally false or recklessly false statement in the affidavit that was serial and in our view the district were correctly concluded controlled by happen what time of day and i don't have my finger tips it's in the evening so you could let me ask a different question maybe sort of back into it this way do you know whether testimony of detective mccoy where he describes surveillance is that before or after the bye so our understanding is there is surveillance at both times right but the testimony of j thirty  i think although the record is not clear and i'm viewing this in the exact same position as the court from a cold record right i think this is after the reason i say that is it's not the same incident because there's only one female a that mr moody dealt from the house he met people at the house two that he had traveled from the house to meet mr hogan on march twenty fourth two thousand and sixteen to consummate the heroin transaction trial exhibit list the government had disclosed that they had obtained documents from this third party and what the trial court held was that once the defense counsel had gotten that pretrial exhibit and seen that these documents had been obtained by the government through a third party triggering the suppression motion that's when he had the obligation to move for move for the  implicated we don't have that here we don't have here where that evidence that evidence of detective shelby's falsity was available free trial in any context that evidence was only available when she took the stand and testified and on a detective roach i would note that detective roche was on the swat team on march twenty fourth two thousand and sixty he had nothing to do with surveillance or anything else h subsequent affidavit in federal court is based on it's based on the same information but their point is that it excepting that right the fact that it change is put you on notice that somebody figured out how at least that allegation be that it wasn't true and that only goes to the issue of who left the house and went to travel to hogan it doesn't go to the issue evidence she was never used as an informant she never performed any control purposes yet shoki alleged that controlled purchases were made from the house again that's false and that's immaterial misrepresentation that that rico doesn't stand for the doesn't stand when where you know they're on the issue of when the motion should be made if the evidence doesn't come forward until trial and rico the issue was the search was conducted  items were seized from the defendant in his presence in this house and it's been argued well my attorney didn't know that and so my attorney didn't know to make a motion that was the issue of rico that's not the issue here we're not saying there's an issue between knowledge of the  target here the issue is the knowledge for both only arose once trial occurred and because of that the standard that this court should apply is the standard it applies to all frank serious and the denial of frank's errors and that is review of the factual determinations for clear air and review of the legal conclusions don't know and i will note that the trial court in its opinion completely ignored the issue that detective shelby had testified that mr moody did not meet people at the house truck or to analyze it it's not as opinion between this case and white are you sure i think it would have been preferable for the for the trial counsel raises the media trial but i think that since this was not available until trial rule twelve simply does not apply to the question before the court so the would go to different locations with which is like true but the question is whether it's exclusive then ten pages later she's testifying and she talks about the heroine and she says that's what my dealings were with the purchases we made from the house so she describes i mean you could read and i accept that maybe it seems aggressive but maybe you could read j a to fifty that he would  then say only right but you could read it as saying he would only go to a different location is there but knowledge is he would go to different locations the question is whether that only thing he would do but the ambiguity there seems to be resolved by jay to sixty where colloquy was dealing with the march twenty fourth two thousand and sixteen controlled by and i believe that when you look at that statement in context the court is clarifying what happened that day and that could the purchase we made from the house i believe is shoki referring to the purchase hogan made when he called and she ultimately purchased narcotics away from twelve up in seattle and shockey was associated that with their contacts came from the house context of the testimony she referred to the march twenty fourth two thousand and sixteen talking transaction you know for the questions i think now we thank you very much i have to tell you that is one of the best arguments i've heard from you really didn't you find job that's a tough question