honor so if it may please the court my name is called stevens i represent the appellant in this case scott palmer the district court at the pretrial proceedings made to somewhat overlapping but distinct errors  i presented two distinct arguments on appeal i don't know if the court has a preference as to which one i would i address first i do have a question for you as to the well called the rule forty three issue very well  i understand there was a telephone conference to discuss the franks hearing and i'm so i think the parties disagree as to how significant that hearing was was there ever an objection by either party saying wait a second mr boehner needs to be here no there was not here so in light of there being no objection what is this for harmlessness to review for plane air or what do we do in this context i guess i would review it for plane area or are given the constitutional significance i'm sure my counsel for the government would disagree with me on that i think he probably would want us to review it for plane air i think you'd want to review it for harmlessness the plane there's a tougher standard for you to win on i but i think i can win it under  enough i mean but what that telephonic hearing did was it completely reversed the franks proceedings that had started the district court itself indicated that it made this iranis decision which benefited mr bomber and at that conference the district court essentially said all right i'm taking away the benefit taking away all of the evidence that that mr brymer was able to elicit through cross examination excuse me on the factual omissions and the erroneous statements that were made in the submitting officers warrant their application so essentially what the district court did is i taking this away and i think mr bummers absence at that conference whether it was objected to or not was error plain it was harmful under no matter what standard what overall understanding of the proceedings where his case was going i mean i would submit that on the december seventh hearing things were going fairly well for mr balmer the district court did acknowledge that it was it would that was a favorable error on the district court's part december eighth things start to go really poorly and i cannot tell you what mr brymer could have contributed i was a trial counsel i know that mr brymer has some learning problems perhaps you know he walked into court that on the next day expecting his crush his counsel to be able to cross examine detective duffy to potentially get the information from this regarding the identity of this i that really provides the cornerstone for the affidavit and for the probable cause what he could have contributed i i don't know but i don't think i don't think that's the standard the court should look at is what could he have contributed i think the standard really is the monumental a fact that that telephonic conference had on his case and he should have at least had the opportunity to be  present moving on to the frank's process i guess i just want to address a few things the district court  the district court relied heavily on reeves u s versus reeves that cases is really very different from what happened in in mr bummers case in reeves the the warrant courts the magistrate that you should the warrant had the benefit of a real of a reliability analysis of the confidential informant in that case in that case law enforcement in the affidavit for the warrant indicated that the c i was reliable because he provided pas information on three previous warrants each warrant had produced narcotics seizures the c i had also done three controlled by and so it's that sort of reliability of the informant that in this case the state district court that issued the warrant was deprived of that i mean ultimately the district court did in the in camera review establish the reliability but i think that misses the point what the district court in that case in this case was looking at is our right under of frank's process and under reeves does the defendant have the right to learn the identity of the confidential informant that's a different analysis than what mr bomber was asking under under his motion to suppress was essentially look the district court the state district court that issued the warrant was deprived of its ability to have an independent determination of the reliability of this th and in light of the errors that were in the warrant application regarding the the reliability of miss bennett who said mr model was traveling to helena to buy from mr balmer that wasn't true she knew he was going to helena she didn't mr she knew that her source wasn't she didn't know her source was buying from mr palmer as i dressed in the briefs the paying evidence is is innocent and best and then we have this this c i that evolves essentially from well in the war an application the cia says mr bombers bring large amounts of methane mr nor caught in arizona and then when trial counsel asked for the identity of the cia i believe it's sealed exhibit thirteen that was submitted to the evidence you're hearing it isn't oh no well we know he's buying it's word on the street tells us that he's buying from mr nor caught in arizona we don't actually have reliable information we just have word on the street and then at some point this x part of this in camera review session happens there's no record of it and i mean it just it makes it really somewhat impossible for this court to review it on appeal i guess the reliability in somebody mean there's no record i don't believe there's a record of the in camera session good morning may it please the court keith jones for the united states to go directly to your question on the rule forty three issue in this case presents a case similar to us v v h one nine hundred eighty one eight case at six seventy four f second twelve seventeen that was a rule forty three case as well and the court noted specifically that defense counsel did not object to numerous sidebars where the defendant was not invited to participate it was just between counsel and that was one of the factors that the court considered in finding that that definitive and preserve that issue to be able to  to to contest that he should have been able to participate and in the church to analyze it under rule forty three the court identified two prongs whether the defendants absence frustrated the fairness of the proceeding and then whether the defendant was prejudiced to already defendants absence from the teleconference did not frustrate the fairness of the proceeding because on the second morning judge morris in open court in front of a defendant engaged in  completely summary of what happened throughout the first day and then what happened at the teleconference and judge morris invited both counsel to kind of supplement that summary as he described to the defendant what had taken place so far what to place at the teleconference and the procedure that the court was going to follow under reeves to go into the in camera view so to the extent that the defendant was prejudiced by not being able to attend a teleconference the defendant then  that prejudice was diminished and minimized by the court presenting that summary inviting the defendant to argue as necessary ask questions as necessary through his counsel on the beginning of the second day are you c proceeding was a critical stage we would go through the hovey analysis that that you wrote but secondarily we don't even have to go through that because the second step of the analysis is whether it is subject to harmless error analysis the exclusion from a critical stage is not constitutional error structural error it is trial error and so we would look at what was his exclusion from the teleconference harmless error and to the extent that he was not able to participate in the teleconference if that had been the end of the analysis then perhaps it could have been harmless but because  telephonic conference mr ballmer thought it was going to happen frank's hearing and there were sent issues with that affidavit some portions of it lacking personal knowledge that were testif by the judge alone without a record and then it just seems like there are a lot of not strictly quite by the procedural problems here just judge wardlaw to the was the identity of this confidential informant relying on confidential informant information the judge could have initiated what would be the reeves protocol at that moment on the first day but the judge didn't and the judge allowed a day of of evidence gathering and testimony by the defense to their benefit at the conclusion of that day it was the defense counsel that suggested that he was coming up against wanting to ask the identity of this confidential informant and that reaves would be the proper procedure follow going to an in camera view i think that's what kind of triggered in the judge's mind to look at reeves and call the teleconference to be clear the teleconference was not necessary the teleconference didn't have to happen the judge could have come back in on thursday morning and said you know what i've looked at reeves counsel it was your suggestion and we're turn this thing around go into the camera view this show just to be commended for taking the time to gather counsel together opening the teleconference with ok counsel where do we stand allowing them to to both stay where they believe the case was and then recognizing that the court made a mistake in going to an evidentiary hearing prematurely and so the court did a good job of providing a very clear record for this courtroom view and and and then on the second day of the evidentiary hearing summarizing all of that and providing the defendant an opportunity to the extent that he wasn't able to participate in the teleconference to still engage in identifying the proper procedure and moving forward so to the extent that the defendant complains that he didn't get enough of a benefit from the court's error that should fall on deaf ears that he got a full day of evidence that he otherwise wouldn't have gotten and is now asking for more i'd like to turn briefly  to probable cause and judge order you've you've kind of hinted at this as well the this record judge found three categories of facts that were sufficient to support a probable cause determination and third that mr motto identify that he purchased the meth from the defendant it was those three categories of facts that the district court found as a sufficient basis to support the determination of probable cause and gave deference to the district court judge the state court judge that issued the warrant so if mr amano wasn't reliable then you have two items i don't know if i'd be enough or not that's that's not the case the gist morris was presented with and that's not the case a state court judge was presented with and mottoes reliability was a finding of fact entered in by judge morris after watching the video and judge morse agreed with the investigators when they said we don't know if he was high on meth or not we didn't test happen before interrogating him but his infant we found him reliable and judge moore said yeah there nothing in the video that shows that he was that that testimony was not reliable so as you've you've seen in the video mr moto had had his his personality i think it was notable that as the times that he got angry as to his father he routinely followed that up with we have to hurry because if these guys find out i'm arrested my family might be at stake here he was concerned about the safety various ping information that placed mr amano with mr palmer on at least three occasions either at his business or at his residence and observations of mr moto traveling to and from those of that then we would go back to looking at the confidential informants information with respect to mr balmer being a known provider in helena and that information is what judge morris reviewed in camera and came back out and said i find that confidential informants identity would not an able defense counsel to the second finding the judge morris laid out on that was even if that company from its identity was known that those two lines in the search warrant affidavit are not necessary for the determination of probable cause if we're stepping outside of these facts to the hypothetical of of judge morris not relying on the amount of video i think that he might have appeared to back to that but i can't tell you thank you i disagree obviously with the government if you remove a motto i mean so much of the probable cause determination of this case rests on shaky ground i watched the whole video it was excruciating  the last thirty minutes from my perspective i mean i'm a criminal defense attorney i deal with a lot of people on math i think he's clearly high i can't make a determination or say that the district court didn't see something i didn't  would disagree that the law enforcement officers found mr amano credible i think if you watch the entire three and a half hours there are definitely very sarcastic statements made by detective cruz who is the officer on the left hand side of the screen as you watch the video i believe at one point he makes some very sarcastic comment and he also tells mr moto several times you're not telling us anything we already know so i think this case is governed by really this court's decision and hall where you have a whole bunch of neutral albeit maybe innocent or neutral facts paying information you have a statement in a facts i mean yeah these are fact intensive cases yes so i mean i would say this case is stronger the hall is a little bit stronger but i think that what was developed in the franks hearing significantly undermines the probable cause in this case and i think i mean i just the way the district court went about it was somewhat problematic because he heard all of this evidence he watched the tape he engaged in this in camera discussion that mr balmer nor his counsel were privy to and then came back and said ok i think probable cause happened here and i do i just think it's probably passe i just don't think that's fair as from when you factor in that he was excluded from the telephonic hearing but i also don't think it satisfies probable cause once you extract all the questionable stuff thank you counsel very much thank you your honor sir thank you to both counsel for their briefing in arguing this case this matter is submitted