my name is michael kennedy on the person assistant with the federal public defender's office in the district of nevada and i represent robert marshall in this case it involves wiretaps confrontation and restriction on cross examination starting with the wiretap traditional investigative techniques were being used when the issuing judges on the the lose first extension second extension and third extension were being told expressed only that they were unavailable and that they were inadequate specifically search warrants we could not use a search warrant when in truth and in fact three months before a search warrant had been used but not by the f b i by metro by brian i focus your honor on the first second and third extension for two reasons first that was ninety five to ninety eight percent of the actual tape evidence at trial from those wiretaps and as the carneiro case shows each wiretap standing on its own needs to board the first extension of the blues wiretap was december eighteenth of that year after that meeting the january seventeenth two thousand and one extension was after that meeting and the feb sixteenth was after that meeting the purpose of the meeting was that this character of the lose was caught double dipping the miracles of call waiting he's on one line doing a huge ecstasy deal he puts the guy on call waiting and he starts talking to his handler from the metro so the f b i and metro get together to discuss what was the lose its role as an informant rather than telling the issue in court and on the eighteenth of december the seventeenth of january on the sixteenth of february the true facts that there have been a search warrant what was told the issue in court was that it was a mere street encounter which was a lie there was no street encounter rather than telling the issuing court that will lose had been debriefed had been given assessed that had been given an interview had disclosed all the dealings that was not told of the issue in court rather then tell the issue in court that controlled by is had been made to from the lose and to lose his associates and seven metro officers where they are surveilling when that happened that was hidden from the issuing court rather than and i mean how much of that that the f b i now all of it after december seventh of two thousand your honor i suggest that they knew it before that but we don't even have to get to that question because as i say there was only one tape that was played at trial from the first two wiretaps and their extensions and the lose wiretap the original wiretap all of what i'm telling you was after the meeting with the f b i and metro for the expressed purpose of discussing richard lose even more importantly the metro had him on the hook they had the goods on him they found evidence of trafficking guns all sorts of items and he had already given up to main suppliers he had agreed to be an undercover agent and he had done all these things the traditional investing career your technique of just executing the search warrant confronting him with the evidence and having him spill his guts to three years of dealing worked and the i knew that before they sought the eighteenth of january seventeenth and the sixteenth so what the true facts were or outlined that page seventeen of the reply brief excuse me page fourteen this is just a represented but there were six things that were the true facts that were omitted from these three affidavit in addition what was for instance of loos was apparently stopped and searched by las vegas metro police when they knew it was not a street encounter all of this goes to the fact your honor that what ended up happening w even with the wealth of all this evidence there was no evidentiary hearing ever held on the wiretaps quite simply the indictment and the evidence the trial was the fruit of these illegal wiretaps this stuff was withheld from the court in addition the original blues affidavit the one on november seventeenth even though there was only one safe they came out of that environment and so completely interview and he was on the hook to testify down under the number three you have to quote two things in quotes the first the first is evidently from the affidavit when he admitted that's what is that a quote from the second one is the affidavit which you have you have an open quote you don't have a close quote that would be a quote from the second site which you said seven seven seven twenty one which is why which is the search warrant affidavit that i got went out and guy with the and after i receive this on september from the from what i filed for the issue for the reviewing ok that's not from from the government doctor point is i apologize but what if there was a good so what the f b i was telling the district court's number three was that they had been contacted by l b two thousand and two and september eighteenth or nineteenth when i filed the motion the wiretap evidence then is just simply illegal there's no question about it there's no question that it's material omissions the go to home the heart of what and affianced telling the issuing judge under the commands of the statute it is intentional and reckless as to the first second and third extension because it's all after the meeting with metro and the f b i to discuss what they what blues was doing what had happened how they got to this point and why was double dealing for the volusia original affidavit if not intentional it was reckless because the initial the lose affidavit said that it was long reputed that blues was a drug deal an initial baby step of any investigation would be to go to the local narcotics police officers and ask about information about this person if they actually step had simple step of been taken they would have said we've already done a search warrant we've already got him we've got his suppliers he's working for us he's doing these things he was everything that the original the lose affidavit told the issuing judge that they couldn't do which was inadequate they couldn't do it was already being done which makes it worse in kind than the canary case and the other cases i got a lot we got through these one by one and you tell me you tell me exactly what's wrong on number one number one look with apparently stopped and searched by the las vegas metropolitan police the f b i knew that the loose had given up everything on his young life that can really difficult you know it's been seven twenty one because the search warrant and the police report tells you that and that was the reason they met with  the confrontation clause is at issue here because the lose was never called to testify as they witnessed i have jack to do that for the change coming and and the crawford case which i submitted to twenty eight j letter addresses that he was available and volusia was acting as a government agent receiving evidence so it was testimony no it is just like that situation with sylvia crawford and michael crawford in crawford the washington and i'll address that part in most cases truth of the matter asserted but that raises the confrontation clause because the witness itself is unavailable and obviously entrapment was the defense at trial so they took from me by their decision not to call the lose any ability for me to cross examine the voice who was heard the most on the tapes at trial the primary source of information at trial was mr bellew's and he was putting that information together working as an agent of found and did not clearly error in finding that the defendant cannot demonstrate that metro was part of the federal investigation or vice versa judge george also found and this is in the excerpts of record beginning  involved in and the metro officers if you go to their testimony that handler which is mr jones as well as the undercover that's what officer mr hernandez if you go to their testimony p d your honor the woods started cooperate and august august eleventh of two thousand according to his handler wiretapped him first they didn't know about his involvement with metro your honor at the time that they did the one to the six application they did not know during the wiretapping that revealed in the metro search warrant which i i can't emphasize enough that f b i in its original application did not know about or in the extensions they did not naturally testified they did not know about brings in mr balloons as a cooperate or and that occurred and two thousand and one on march tenth i mean i'm sorry on march the eight george knew was going on in fact he said that that pollute his conduct throughout the course of dealing with either state law enforcement or it into context what you're admitting to the truth of the matter sorted is either in this case going to be the admission which is clearly not your state mr marshall or the coconspirator statement which would be those of jerry brown the court ten yes i have to say he would have been available certainly this is not an unavailable witness by reason of medical condition or researching of the fifth amendment or something like that he was available and so far as i understand the record sworn or and sworn by witnesses these were all taped statements that came in through these take conversations and again they were limited to ten times throughout this trial the ninth circuit in the whitman decision at seven seventy and crawford i submit to you does not put that into question only you can statements have come in for their truth yes there would definitely be a confrontation issue and police would have written motion filed the minute they're the losers not called to testify are going on the confrontation clause grounds second the the lose was eight informant when these tapes were going he was not a coconspirator understeers you can't cope and spire with the person who's working for the government the government offered no tape under the coconspirator exception thirty it was december seventh at that meeting where the information was given about the wiretaps and the extensions were that month december eighteenth january seventeenth and february sixteenth that was ninety five percent of the trial evidence mr volute this was an entrapment case and we started at page twenty eight the government started the seventh circuit case for this context only principle there is no ninth circuit case that permits context only and mission of evidence where the actual speaker is not there to cross examine we look at the facts of every one of those out  circuit cases and i'm page twenty eight the court said the declarant is there to be cross examined this was an entrapment case the government has conceded to you that this man bellew's was no one could control him and the government precluded me from showing that to the jury he was debriefed by the f b i the moment three wiretaps and four extensions the moment this man was moving seriously great kilos in kilos fifty hundred kilos the moment bob marshall came up they shut down the wire they served a search warrant the f b i in march on blues what they said they couldn't do they debrief him he cooperated again why was he on the hook to testify at trial he was on the hook to cooperate with the government from august eleventh two thousand because he was never prosecuted for that and he had to agree to continue to work with them i