that materially contradicted the town court's notes if you look at the affidavit in support of the application paragraph to detective oz wald provided conclus that the confidential informant was reliable and also described that he personally observed to control by i'd like to note for the court that these two controlled by effectively disappeared from the case after this you won't see them in the affidavit in support of the complaint which was filed through days after the warrant was executed he wasn't indicted on either one of these controlled buys which is very unusual they would have to burn the i to indict him on those you don't see the control buys mentioned in the relevant offense period section of the plea agreement we only see the control by as mentioned again and the probation report paragraphs eleven and twelve and apparently we learn that they never did any testing for any drugs that they received there and i just i'm sorry can i ask you about it and i'm glad you brought up the p s r because i thought it's time i did  it appears that the district judge adopted the factual findings of the p s r including paragraphs and eleven which referred without objection specifically during the sentencing transcript so it appears that the defense conceded before the district court that those two controlled by actually occurred and my reading that right i'm looking at one let me just to make sure i look at the don't i'm sorry go ahead judge you know that's a judge i don't see an objection there the record and i don't recall there being another objection specifically to that i'm going to review that if you don't want to while posing counsel as if i could maybe i'll have a more clear answer for you sure and obviously the reason i raise that is if in fact the defense has conceded that those controlled by is in fact occurred and the district court absent objection found that they occurred doesn't that completely undermine and these that portion of your frank's argument which is that the affiant misled the judge who issued the warrant because those controlled buys did not in fact occur i do believe counsel made numerous objections to try to learn more about this information and get context to it and i would ask the court not so if you are not to interpret the record that way it was not counsel intention to can see that at all he had tried to hang on i'm sorry it doesn't really matter if if he conceded it right like if he had it in some other intention in mind in his heart of hearts that doesn't really affect anything right the question is simply did he concede those facts were true and if so doesn't that have a consequence at least for a portion of your franks argument for a portion of it yes it would judge and i would but i would like to address that more sufficiently i want to review that section appreciate your question of course i'd ask this quarter to consider the affidavit in light of the notes that were that we received from the issuing judge here told the issuing judge that he had not worked but tonawanda police in the past we believe that is a material contradiction so the affidavit in support from detective world and i'm sorry i can't you tell me where in the which i believe it a page eighty three of the appendix so many tell me where it says that he worked with them previously to the control purchases now it doesn't say that your honor what it indicates is a couple of things he says that this is a reliable informant and i made personal observations of control lies in november and december of two thousand and seventeen when the c i is speaking to the issuing judge our interpretation of those notes is that he's indicating he had not worked with with him in the past in other words before december th so that so paragraph two does not indicate as your st question asked that he did not that he worked with them before that time i'm saying that the contradiction as before december th is telling the issuing judge that he has not worked for the tonawanda place that's the contradiction that we asked the court to for you're saying that the judges notes the handwritten notes reflect that the c i said he was not present for those two purchases he is yes that the cia is saying he has not worked at the tonawanda place in the past and that would be you know and i understand what you're saying the past  your interpretation of the notes meaning the past means include including the two controlled purchases that he's describing in the notes in these notes are dated december th and the cia is clearly describing controlled purchases that he witnessed that by definition preceded the data which you speaking to the magistrate so i guess i'm not understood your argument i wouldn't i wouldn't agree your honor that the notes are describing control purchases they are  describing past times that he's been so that location reportedly was when last time there and then there's a name in quotes purchased sixty dollars of crack but how does that not a description of purchasing drugs but a control purchase your honor of course would have to include the procedures of going in with marked money the description of being searched st being observed going and and then leaving after and being searched and so forth well maybe maybe they do maybe they don't that may depend on whether you think it was a well executed controlled by or a poorly executed one but the fact that the judge's notes don't reflect anything one way or the other right i mean the fact that the district judge didn't take notes doesn't show that the informant firmat of lee told the judge that it wasn't a controlled by right but i think the statement that that same statement underneath the redaction which i'm looking at right now where he indicates has not worked with the tonawanda police in the past we believe does materially contradict that paragraph to you know that that's our record if you can to look  questioning i think i believe that mr nelson position is that because of the fact that the notes that count justice group are took when he met with the confidential informant and camera misrepresentations and what the government is saying is that when viewed against the standard of whether or not probable cause exists for this warrant and giving count justice gruber  yes there are no and the notes were are you know we don't know how to read those notes they could just be certain points during that in camera proceeding which account just as gruber felt he needed to write down just the warrant finally your honor is with respect to the nd issue which mr nelson is not arguing on we would the government would rely on its twenty eight j letter sent on party risk notification condition of special release keep me conditional supervised release as being that issue is not right before this court and so therefore this court may not review that and i ask you one question about the magistrate judge's findings yes i was confused by the magistrate's reading of the notes and apparently finding that the and then the name of the other individual and then purchased six feet of crack i don't know if the government can take a position on in terms of that note specifically support necessarily the but it's the government's position your honor that there is adequate probable cause to support issuance of i get that did did the government take a position before the magistrate judge about what these notes meant i mean obviously you had access to defend in will who could have recounted you know what was said to the to the issuing judge and i found it's all very confusing because when i read these notes i presumed that the name in quotes and i'm not i'm not quite sure why this page is under seal because there's material that's already been redacted that i seen would be harmful to release the public i don't see what's here but let's say for the sake of argument the name that's in quotation marks ought not to be disclosed is that name in quotation marks is that some of the government is represented refers to a rd party or does the government not even know who that name is did you not talk to  i don't know at during the time of the litigation of this on the suppression issue whether how what how the contacts of that particular note came out i know that you know certainly there was litigation over the release of the notes the notes next necessarily i think the litigation was just focus on whether or not there were no whether or not the notes were adequate or that they you know completely  transcribe the event i guess of the in camera proceeding if your honor if i may and i am more than willing to take a look back and issue a supplemental letter just to clarify in terms of whether or not the government did take a position after that i do recognize that it does say what of course his honor had indicated we would like to supplement with a letter if we could to the court to address whether this has been conceded or not i would like to also address counsel's comments in response to your honor questions with regards to the magistrate's finding if we look at page three hundred and eighteen of the joint appendix the district court appears to be accepting the finding of the magistrate specifically with regards to this point if we look at the notes we do not believe that it indicates that it is in fact the defendant who is involved with these transactions it says purchased drugs many times it doesn't indicate in any way that it was from the have left with another apple actually can i can i go around that because i think it's an interesting point about the magistrate judges finding that's why i raised it but that name that appears in quotes i read that is a reference to the defendant well judge when you say in quotes do you mean above and i apologise but israel has been above the phrase purchased drugs many times is that what you're referring to you know i'll read the line that's exactly in the middle of the page without the relevant name said last time their name  purchased sixty dollars of crack john answered the door and then that name again to crack from pill bottle in candy well sitting in a rocking chair and that would seem to line up with the sixty dollars it from your client who was using that alias but again i don't know because and that's why i'm asking the parties what the records the purchased drugs many times which was emphasized by the magistrate and then by the district court we believe that aspect there is not supported by the notes and that follows the phrase that you're on i just mentioned the phrase that you had mentioned the potential alias if you can read the notes to indicate that which i agree i'm not sure basis for it within that same context of course judge i know your owners know this and gates the answer in court is not supposed to be merely ratifying their conclusions and we've asked the court to focus in on that as well as the rest of the gates neutered