investigation that took place over three year period into a violent asian it were an ice crime operation when the key tools used in the investigation was a wiretap during four periods for three day periods of investigation and as a result of that wiretap the government gained evidence to bring charges of murder kidnapping to the record cheering and drug trafficking the government concedes your honour's that in fact from period three the wiretap tapes were sealed sixty days later in violation of the provisions in eighteen u s c twenty eight fifteen the sealing provisions in the wiretap provision however i would note to this court that the supreme court you know heda and this court just recently in her noted that the sealing provisions in question are designed to protect the reliability and the integrity of the tapes and in this case and your honor so i would suggest there was absolutely no evidence that the tapes that were suppressed were tampered with and in fact we say that there was that there was there and not sealing the one time i think it's a fair question looking through all the cases that i've seen that have dealt with this issue the only case where the tapes are sealed with the state of louisiana case and they're the courts found that the government whether the court was unsure when the government ever sealed and if in fact it had the court found that there was no viable explanation given by the government but if there's a viable satisfactory explanation then i would suggest well that's really what this is about right i think that's correct or i think absent case is over that's correct and as it should be the first thing you have to show is at least some possible explanation that no harm has been done career and we can start from believed that when the defendants use cell phones during the first three periods and then changed to a new cell phone a law office wised him to wait until the end of the wiretap to see all the tapes from that if you know what you are i would suggest that he was cell phone change and they went for another two periods and still at the end and the court said looking at this question which we look at for the first time and up until this point was an open question in the circuit we conclude that extension in this case means you have steel after the first two periods but they said the agent's belief in that case was a good faith belief which justified him wait until the end based on the law and the other factors no and that's precisely what we have in this case the the ever the case even on a wiretap your i don't know whether it was the first time you have worked on a wiretap but i know it was the first he was uncertain whether the first time he was in charge in effect of sealing the that's ok that's correct it was his first experience of that you was a mistake the ninth circuit in herman x that it was an open question until they ruled in the circuit and so the only case law that was out there that was really on point was the principle case i believe in and even mr nothing from the second  in this case defense virtually doesn't even address the issue from a one one brief doesn't mention the decision the other barely talks about an attempted distinguish based on some semantics in regards to versus renewables the bulk of their argument in regards to the fifty one days and the way stems from the claim that the agent didn't act in good faith and if that were the case then the hermit decision wouldn't apply but i would argue for this court record before the court suggests nothing of that kind in fact it suggests the opposite during the wiretap period as of when the court may recognize there were four periods in the middle of the third period the age the conclusion of wiretapping and so on a saturday monday morning he's calling the usa and saying i'm ready to steal these tapes when she calls them back on friday he brings the tapes in and it minutely delivers them to the court agent in this case that everything that  of this issue before the court is whether those five days or nine calendar days constitutes a viable reason to suppress critical evidence in this case and i would suggest before getting into law that the district court in this case judge hatter concluded that it did not because the second set of tapes that were also the subject of motion to suppress were just the tapes from the fourth period and they were sealed nine days late based soley on the former usaf mistake that's not my problems justified the stealing the lace i would argue to this court the probs of the former as they had in this case were far more significant than what happened there but also it's just this court that debate doesn't need to be taking place because the critical point of that decision the critical factor in question was not how bad are your problems but what impact your problems have on your work product in the battlemented case and i would note it's at page twenty four of that decision of those in a couple minutes but i would note defense talks about the fact that there is no proof that her problems were were taking place at the time the wiretap ceiling was required and it's just the record is full of i policy statement which said see that same thing that he was allowed to seal at the end the case on this at the end of what at the end of the four periods at the end of the extensions there and that's what he was relying on and understanding as in even a fraction misinterpreted this actually was in thinking that each of these new applications merely an extension of the previous wired the therefore i don't see it until it's all fun he didn't say that you are but i would argue that he he would know or he made a mistake in retrospect this court in looking at the same facts from for another agent said yes you made a mistake but that mistake was a good faith in the state that justified the delay in sealing and that's what i would argue happened here he did make a mistake he was mistaken based on herman econd decision that was decided after the ceiling but as in herman act the court here sh after its decision the argument that we would be making no longer applies but the labeling on the law prior to her decision when this engine was operating was just that it was an open question and until it's been closed until it's been for these phones and holding them all even though there were different phones and differ that's cons of different taps involved until they finish the whole investigation that's right and you say that that is really the same is  argument that's technical and it makes all the difference in the world can i explain what i mean and if and if you if you lump the concept of what we're talking about into an extension you're home free  i can agree with the court it's now it's it's only that you're arguing that somebody couldn't tell the difference that's correct but we can now that's correct ok well i'm curious when you see code extension and going from spirit three to four it was a new phone and the new light wasn't an extension the exact language is used for both applications or in this case for all three applications they called them we knew all this was purely the term of art but i would not let me tell you what's troubling me a little bit about this as i understood an answer to an earlier question of mine just that you thought the agent believed he was merely getting an extension he thought he was getting an extension but it was already established at that point that these were not extensions but these were new applications and i don't see how he can say well i was mistaken i thought it was an extension  of the statute that these wiretap conversations that these tapes not be in a position where they the agents are able to tamper with them whether they in fact did tamper with them or did not tamper with them is not the focus of the statute it's a prerequisite for the use by the government of these tape recordings that they be properly sealed and what that means is that this court is already aware that they must be immediately sealed a determination by the ninth circuit that what extensions actually meant and that was an open question at the time of the required stealing in this case we disagree with the government act the government have changed for wiretaps with respect to one individual flowers that's been in flowers so when the government when the government found out flowers had switched his phone down the phone and moved on to another phone to another cell phone they requested permission to tap the secondary from and they believe the agents believed at the agents were somewhat misled by the court because when the agents applied for the what they considered an extension when they applied they called it an extension they said we want an extension of the wiretap as to mr flowers he has changed found they called it an extension the court apparently also called it an extension that is totally different from the situation that we have here here we don't explanation and the response there would be well the first of all the agent here did not say contrary to the government's representation the agent didn't say i thought these were all extensions and therefore i was complying he made a mistake in his interpretation of the law and not only did he make a mistake with respect to how he viewed the law he didn't consult with any other a pink this was the first time that he was in charge of  could not be reasonable i think that i'm not saying that exactly i am saying that the fact that he didn't know the law that that is not a satisfactory explanation and that is not an objective lee reasonable explanation for what happened here i am also saying however that the fact that he made no attempts to educate himself that those are all any made no attempt to contact a supervisory made no attempt to find out the law that you know what i knew the law but i forgot i got so busy i just forgot i'm so sorry but i didn't tamper with this is that objectively reasonable i mean i think the government would have to admit that you know if you forgot to to do it that that's not good enough i know i suppose that arguably not knowing that there was any requirement at all is worse than that i mean i believe  continue to just keep these tapes and just keep collecting them regardless of the number and when the entire investigation was over whenever that was months or years at that point he was supposed to take them and he was wrong he was reasonable for the government to take up position and i would suggest that we go back to the main case in this area and that is the supreme court or head are real which clearly says that does not rise to the level of a satisfactory explanation that is an explanation but that is not a satisfactory explanation but along those lines now even though our core is the term objective be reasonable the supreme court used the term excusable right and they said it not only had to be a satisfactory explanation but it had to be excusable now you're not be excusable that it's correct ok and and and on in this case the government is defending on the basis that their position is huge it wasn't even wrong that's your primary position they're saying that just misinterpret it a lot and look at herman and herman next supports me herman act does not support that position because we have an agent who is not saying that he really thought this was an extension and yet he is that and the government basically argued both first argued that the agent was not mistaken but that to the extent that he was mistaken he was mistaken in believing that these were extensions an and the supreme court found that the sealing requirements are critical because of the nature and the probability of preserving the integrity of the tapes and o'hagan in that case the agent there thought that he could wait till the end of the investigation and many times we have extensions we have renewables we have long term investigations that require multiple wiretaps and it doesn't seem logical that the agent should wait until the end of the investigation because that would take away from the integrity of preserving the tapes that's exactly what i believe the officer in this case thought they could wait until the end of the investigation that talk about the delay in getting it to the court the court having some delay but in this case your honor the good faith belief of the agent in this case he did steal some tapes now he fact the district court judge directly suppressed a t t for tapes which actually have to do with my client's phones those were not sealed those were the exact tapes that were involved in the sixty day delay and my point to your honor's is that that this officer now and the government saying the officer was mistaken his belief and then he didn't go to a a u s a a prosecutor who was had her own personal problems cocaine use and the like however and i just want to address that briefly because the government does seem to based some of the excuses if you will and i believe beside a satisfactory justification you're honest have to find that that's a legitimate excuse as well i don't believe the record supports that the usa in this case was so out of it so not in tune with her or her duties at work that the government should prevail that this was excusable the record in this case through declarations of the a usa and questions of the officers indicated that although she had problems this watching  wiretap was a priority for her and there's nothing in the record that suggests that she was taken away from this or had her mind on some other matters which is contrary to the second circuit this decision that the government cites for apparently a prosecutor that was overwhelmed completely in his whole job duties if you will and taking away from from everything he was doing i don't believe the record speaks to that in this case the only last thing i would like to reference because the first in your honour's asked was about prejudice i would agree with co counsel that the ceiling orders are somewhat of a strict liability absent a satisfactory explanation and that prejudice is not a concern however the government in their moving papers talks about there's no evidence that of any tampering and i would suggest the defense submitted in their moving papers and in the briefs there was evidence offered at the evidence at least on one of the tapes that was even offered there was some discrepancies for example there was gaps in the tape that we know sometimes it's like finding i don't believe they made any finding although as you know judge chatter made no findings of fact and conclusions of law in his room if you will and but i'm simply indicating to the court that there is a factual basis in the evidence three record supporting judge chatter's decision that there was discrepancies in some of the tapes and i'm simply indicating that i don't believe that's sufficient for the government to raise that as a basis for justifying excuse other than direct questions i would submit the matter i think you're honest opposed to cell phones when the decision came around the ninth circuit look at that same decision in the context of this new inventions cell phones which had not yet been in draft and it would be an asset for to take a look at that decision because i believe it clearly states that there was satisfactory explanation in regards to the tampering that defenses talked about the tapes in this that are before this court that were suppressed were never none of them were challenging regards having been tampered with and if you are in i would just point out when we're looking at the problems taking place in the former and you would say slight at the time the feeling during periods one and two the ceiling she was admitted to having been a cocaine addict she was addicted to the drug during the last three periods she was at a point where she was doing her thirty days of rehab trying to overcome her her addiction and that's just the court the facts here are far more compelling a personal crisis in her life than they were in battle