wiretapped conversations they were based on an application containing equal statement well this court is not a directed directly address the issue all the sr circuits that have agree that when dealing with a false statement in an application for a wiretap the franks versus delaware analysis should be a plot and based on that analysis this case should be remanded for frank's hearing mr satyagraha certainly presented substantial evidence of a false state was make an agent told the issuing judge that he was seeking a wiretap from that he could not identify the primary user of the target phone they wanted to attack he then went on to tell that same judge that needed the wiretap expressly to identify that person when in fact the truth of the matter was that that person was already identified by law enforcement testimony at the trial established of the picture of that person knowing him to be any santiago was possessed by law enforcement doing surveillance some weeks before when he preferred and so they did know who the owner of the phone was they didn't know who that person's identity was and they told these you guys they did a false statement which show the second question is does mr santiago have substantial evidence of recklessness at least an answer is yes this same agent who participated in that surveillance at which mr santiago's id was known to then wrote a wiretap application to a judge for a phone talking about the primary user of the phone it said we can't identify him we only know him by a nickname we need a wiretap to identify him there is no sense in which when you're trying to get a phone and you know you have a primary user of phone and you're an agent there is no sense in which you can say i didn't realize we'd already identified you could be anything but reckless moreover that same agent on may tenth then tries to get another wiretap applications and in the may tenth that location says we identif based on that last wiretap in the conversations again that's the same agent making false statements about the same topic into applications that substantial evidence of recklessness at least from the circumstances  the indicated we said in our brief in the kates that that's fish the other thing is we have an undeniable material omission because we know through some unknown means the primary target user of that phone was identified and if we have a material mission and we have a frank situation we have to terminate materiality we have to consider is what the judge was trying to decide and what he's trying to decide was whether the government had exhausted its standard investigative techniques but as we noted in the brief when you tell the issuing judge you can't identify the primary target and that leads him to believe undeniably that most of the investigative techniques standardly used are not possible if you don't know a person's name you can't do a criminal history check you can't go out to his house and observe him you can't find out who is associates are and do interviews and see who will cooperate they lead the issuing judge to believe there was no possibility of doing these things and by doing that that his unquestioning material would do the new you know bush solace right they thought they knew about the other guy who was the subject of the first wiretap the user of the first wiretap the main user wo can't impute invest of can't make sense to one guy to another you have to be able to say this target phone in the user that we want to intercept we have exhausted our basic investigative techniques as to him they did not they knew we was and they didn't do a criminal history they didn't go to his house they didn't do a financial sector none of the things they said they were trying to do one sallust than even try those on santiago and if we do the france analysis and say yeah that's material if but if you then take the next step under franks and say with strike out the false statement add the materially limited information take out the claim that we need this to identify minute we can't identify him and put in the omitted information judge we did identify the target user of this phone that's anthony santiago but we did not then do any investigation of his financial history his criminal history his address we didn't try to talk to him all of our standard things we didn't do those after we identified those facts or omitted here you put that into the wiretap application and every conscientious issuing judge is going to say go back and do your investigation as to santiago and then come back to me if you can't get anything from that and they didn't all that they say is well we  question that this would have impacted the decision to issue the application the wire tech and so he's entitled to a frank's hearing in the case should be remanded at least for that purpose but i think that when you look at the analysis under twenty five eighteen mr santiago is actually entitled to more because under section twenty five eighteen one see it states that the government must provide to the issuing judge a full and complete statement of the investigative techniques used and how they were exhausted we know that they had through some unknown technique that we've never been able to find out about identified anthony santiago they omitted that from their application that  matter of undeniable logical truth they did not give the chief judge a full and complete statement the techniques used and whether or not they were effective because some technique was used and some technique was affective and they chose not to tell the judge now under twenty five eighteen one c that means that they violated one of the requirements to get a title application rant pursuant to the g or donald case the violation of a title three requirement one of these twenty five eighteen requirements that substantially implement implements congressional intent to limit the use of these intercepts to only situations where this significant tactic is really necessary any time you have one of the requirements violated that implements that intent of congress y suppression of acts and you look at twenty five eighteen there is no requirement that is more fundamental to preventing these intercepts from being given in every case is the first step but twenty five eight hundred one see that says at least give us a locations i suppose i thought right but there's no indication in any of this that a tap on mr sonti agoa was phones would have yielded that in fact in the application when they cited the conversations that they had between sallis and santiago  santiago only asked soundless questions about certain things he provided no information there was no indication that they had that happen santiago's phone was going to give them this some sort of broader information about samples but all of that gets away from the important point that when the government is taking the step to include false statements about where they are can identify the main user of the phone in order to get a wiretap and not telling the court court we did have success and we didn't use it we're not telling you about it we have successful techniques on this guy when you do that that needs to be suppressed because otherwise you're going to get a wiretap in every case and everybody's said in rice your honor very clearly you can't give deference to an issue in court when the issuing court has been fundamentally misled about the circumstances and there's no case that we can find of the government side where this is ever happened where they have a main target user and they falsely say they can't identify him they need a wiretap to identify him and then omit facts they have identified him and don't tell anybody how they did it when you do that and you know that extreme situation there's very few times this is going to be an issue but when you have these facts then you have to suppress the evidence and at the very least he has to get a french hearing so we can get some information about what really happened because we still don't know what that technique was i'll take just a minute to address the the identification issue in the donovan case we've addressed donovan and what donovan says and it's language plainly is that it's talking about failure to fully comply with the identification requirement is not sufficient it's talking about identifying these other these other people who will be intercepted there at the main target but in this case they failed to comply not full they failed to comply at all and there is no case that has ever said that if you fail to identify the main target that you're trying to intercept any in fact will make a false statement that you can't identify him indeed the tempted to do it when you do that then we believe that does fundamentally imply it's a requirement that substantially implements congressional tent they have to follow it somewhat otherwise the identification requirement under before is a nobody it means nothing congress put in there for nothing that you could also indicate that the government provided enough information and the application indicated so my duty was the government did just beyond that i don't know what was it that i do understand well there was more than just issued contrary to what you were saying it was more than just that particular  and other cases necessity is not the burden that the defense is portraying here it's an important requirement but the way congress wrote the statute is we only need to show that in other investigative procedures were reasonable reasonably appeared to be unlikely to succeed if tried and in this case the government not only did that we actually tried other investigative procedures with one of the most common that we always use is physical surveillance that was attempted  was unsuccessful because the defendant was engaging in counter surveillance so we attempted some of the traditional methods of investigation those were unsuccessful and then we laid out the traditional forms of investigation and the chief judge holderman it reasonably concluded that they were unlikely to succeed those other methods include some of the obvious ones that we typically engage in subject interviews the use of the grand jury subpoenas search warrants interviews were not realistic as laid out in the affidavit because that would let santiago solace and those people know they're being investigated and they would flee or destroy evidence that would ruin our investigation grand jury subpoenas were not realistic either because the defendants would take five in the grand jury it was not appropriate for us to immunize people who didn't gauge the significant criminal activity it was too early for search warrants we didn't have probable cause and that would have only led to you know probably seizure of small amounts of evidence as opposed as opposed to allowing us to achieve all the goals of our investigation so we tried some investigative measures that were unsuccessful others were deemed to be reasonably deemed to to not be likely to succeed in the final point the defense of this is has been focused on the most is this identification requirement and that is a requirement of the statute but is not as cruel will that is not a crucial requirement the way the defendant has been it here the premise of his argument is that it is much more difficult to establish necessity when the government actually knows the name of the defendant and that is simply not true in this case if we had and the franks analysis is typically a materiality is if you had if that information was in the affidavit as should have been in the affidavit there was a mistake that was made here the government should have impact across and that is the franks analysis right there assuming that franks applies to necessity which this court has not decided that same change would not have impacted necessity either we would have still established mississippi and the the best evidence of that is the may eleventh affidavit because in preparing for this argument the one that he's challenging here was the april i'm sorry the april eleventh affidavit what he's challenging here but we obtained a wire on for santiago and santiago solace thirty days later if you compare the necessity sections of those two affidavits they're very very similar the only changes and the later one and that was also that's an exhibit to the motion that the defendant initially filed if you want to take a look at that  the changes to the to the later one were if there was a little bit more surveillance conducted we attempted to use a tracker were unsuccessful and then of course anthony santiago's name was up to it but all in all they were very similar and so if his premises right that once you learn a defendant's name it's nearly impossible or very difficult to establish to study he would have attacked that male what that and that may affidavit but he hasn't because that premise is not true the reality is is it would not have impacted probable cause if we had added that defendant's name to the affidavit and it would not have impacted necessity either because just because it's not as though we learn defendant's name and say we're done take out the handcuffs the investigation is over because what we wanted were the broad goals of the investigation we have to of course establish proof beyond a reasonable doubt that everyone in gauging that everyone involved in this drug trafficking organization had engaged in these crimes that was our main goal other goals included reasonable law enforcement goals included identifying stash out here's where they kept their drugs where they kept their money identifying all the people who were involved in the organization distributing drugs collecting money into littering drugs to customers we want to identify the customers and we want to seize all that evidence and contraband improve the charges and that's why we needed the wire it was reasonable for the judge to conclude that it was not and he was so much pressure cikgu one thing that you two things one who's trekker in suggests that there are at least surveillance conscious let me just briefly describe what we put in the what happened here and and what was in the affidavit on that so law enforcement followed surveilled anthony santiago on three consecutive days and early april prior to applying for this wiretap on all three occasions he was interacting with pedro solace who was a known major narcotics traffickers and one of those occasions santiago was on the highway speeding up slowing down speeding lanes and then right before he got off the expressway he swerved over three lanes right before the exit and so the agents viewed that as counter surveillance mean that either suspect he's being followed or he's trying to figure out if tried and they were not likely and either were tried or had not been tried but either way they were unlikely to be successful given what was going on this investigation another point i'd like to make a necessity is the defense claim that that the couldn't have considered what went on in the broader investigation and addressing assessed and that's that's not accurate that it is it is appropriate and relevant for the chief judge in assessing assess to to look at the broader investigation not just the conduct of one person we were investigating a drug trafficking organization that investigation did not start the day anthony santiago first called into a wire phone on an pedro solaces phone the investigation started in september of two thousand and eleven and we had been investigating pouring really substantial resources into this investigation penn registers surveillance paying following people around and that had started in september of two thousand and eleven and it wasn't until taxi they follow him he gets out runs down a bunch of stairs agents are following him and they see sallust stand at the bottom of stairs looking to see if anyone is coming back coming down so the agents of course walk right past him or pretend like they're not following him so they saw that sallust w page seventy four and seventy five of the wire affidavit that's challenge here salis referred on a call to having four radios and three cell phones which of course suggested to us disguise using as many as seven communications devices even though we have a wire we're only getting a small percentage of his communications and so that meant that solace is of course aware of potential law enforcement he's engaging encounter surveillance both in terms of electronic surveillance and physical surveillance and so it was relevant for judge holderman to to see this drug trafficking organization the members of it all solace in santiago they're very surveillance conscious it is and it's going to be it has been difficult for the government to crack this case despite all the best  done and it was necessary inappropriate for a wiretap to to issue in this case with regard to twenty five eighteen it that's what i'm kind of looking for is there a threshold that you can difficult to to establish that someone's engaged in this in crimes and to that they're using their phones in furtherance you know in connection with those crimes and that will be able to intercept those intercept incriminating communications during the wire period i think i would say the reality is that probable cause is the very difficult burden for us to meet in these cases and so a lot of what our investigation says is trying to establish probable cause and once you've been investigating for one probable cause especially when you're dealing with a large narcotics organization like this where the indigent counter surveillance mistrust is probably going to be established what i would say is typically there that the next twenty five eighteen actually doesn't require any investigation that's that's the short answer because of the way it's written is that it just has to be reasonably unlikely to succeed but we still have the probable cause requirement anyways which typically requires a substantial investigation to to reach that point unless there are any other questions really didn't have any time left but i'll give you a minute thank you with respect to the government's comments about all of this analysis they did the investigation they did on salads it is important they say and the government doesn't dispute investigative techniques done against one person to another and with respect to mr sati jago and what they said in terms of what investigation was done is to him it was one one in stretch of surveillance that's all they did and had they told the district court the truth the materially omitted truth that they knew who he was they didn't check his criminal history they didn't do anything else with respect and he said one instance of surveillance she gentleman who told them very likely to go back and do some more and because of that we know this was material at the very least he's entire entitle to a frank's hearing so that issue can be determined because this was not just a cut and paste thing they said we can't identify and we need to wiretap to identify and that would just false and that good judge a holder with a completely wrong impression that none of these techniques could possibly work because they didn't even know the guys and they were looking for