the first case on for oral argument is united states of america first says approachable severs sound case number one seven dash one zero four three three each side has ton minutes before we start running the clock this is a government appeal and there are to start a couple of things that make the procedural posture a little bit different i see that mr  cole you're seated at counsel table and perhaps perhaps you can just come to the podium for a second so my understanding of we've had some there been contacts between the court and the parties in terms of fat initially you took no position at the district court decide correct that is correct and you are planning to argue today but you will answer in the court's questions or what why are you here well because i guess that i miss espinosa suggested a trend and we do take no position because of attorney client issues trial strategy work product as well i think that will come out in the from the government and i suppose if you felt compelled to get up you could but otherwise i'll touch base with the a before we conclude argument or my colleagues have any questions that was and thank you all right then we are ready for the government and so i mean i guess essentially you have ten minutes and since they don't plan to argue then you have ten minutes but if it turns out that they say certain things then we'll all adjust appropriately to make sure that the court's questions were answered yes thank you may please the court appearing on behalf of the united states your honors in this case a criminal convict faked her own death fled in the night and then remained at large for more than a year before she was returned to serve her federal sentence we have limited time and i'm pretty familiar with the facts i have a number of questions i'd like t first what what was the evidence of knowledge that was presented to nord to get the indictment or was the basis for your indictment your honor i'm not sure that i can really reveal what happened in the grand jury proceeding i understand that you can't reveal but i guess i'd just like to know what's your evidence of knowledge generally speaking to to meet that probable cause standard we had the evidence of an executed arrest warrant that was on a public docket we had the history of mr and mrs santa being married for a very long time the fact that mr stanton was found with mrs santa there's other as circumstantial evidence so you felt comfortable going forward on that you had to know that your burden of proof at the time of charles was going to be beyond a reasonable doubt correct yes of course and so i assume you would have not brought the case unless you thought you could prove you prove your case beyond a reasonable doubt  we do believe that we can prove the case beyond a reasonable doubt then if you can then why is this information so critical to you because it appears that you have certified that it is of substantial importance to your case which you know you've met the certification standard but just have some question and then second i guess the answer to that would also respond to why this would be provide good cause because i'm not sure i understand your basis for being here appealing this decision today so first your honor regarding why the information is so important as you've read in that in the court in the cases is extremely rare for the government to have access to direct information that shows the defendant's knowledge of the arrest warrant in this case we believe that the pretrial services officer can provide that direct evidence and regardless of where our case to you know that no your honor we don't we haven't been permitted to find out but yet you you say it's critical even though you don't know the answer that's really unique posture to be an unruly one that i've seen ever before by the government when  even know what the response is i understand detention that your honor is addressing we believe that we can prove our case based on circumstantial evidence but from the moment we begin a case through the end of trial we don't stop investigating and in this case we don't find that there is a reason to exclude this information from the government or from the jury it's a fishing expedition  there is information in the not in the record that leads us to believe that the pretrial services officer will answer in the affirmative but regardless well it sounds like is that it's ok what are the elements of the offense that you have to prove we have to prove that that the defendant assisted his wife in avoiding her capture that he was aware that she was a fugitive and a few other elements but obviously the one here that is that issue is whether he had knowledge specifically of her fugitive status ok so if the it's of the pretrial services officer if that person were to have told i'm saying hypothetically if the person were to have told mr santa the husband that she's a fugitive and we're issuing a warrant for her arrest or whatever then that would be direct evidence that he had knowledge yes your honor so if i assume that hypothetically if that's what the evidence is now i'm assuming that your argument you know judge markey has questioned you saying you know obviously all prosecutors know they shouldn't bring a charge unless they can they're convinced that the person is guilty beyond a reasonable doubt because otherwise that would be a dereliction of your your dignity and that would also include what you i'm i don't know if you're making this argument to your use i heard you just say that yeah we think that we can with or without but we do think that it is important evidence and it would be more evidence and don't tell me how to try my case that don't tell me that i don't really need this because i don't know you know you can do it without it is that what you're basically saying here i mean i'm information that you're seeking and which has been in terms of the regulations here has specific explicitly stated that this kind of information the court house to value and protect because it is so core of core importance to the administration of these types of person for the court these officers actually extended agent of the court so someone presumably would not be trying to tell you how to try your case if it wasn't apparently in my view it precluded or excluded from based on these rules these pretrial services yes i understand your hono position we respectfully disagree we don't believe that this is confidential information where you would concede it's confidential that the communications with the messes the one that make her death and  on the way are ok that but that's not the defendant here so you would concede that her communications with her pretrial services officer are confidential because we that's and is it your position that the statute would clearly cover it to her but it doesn't but he doesn't get to be swept in under that privilege is that which is that what you're arguing very close your honor we would not say that the pre services notification to any person that there was an arrest warrant issued for that person should be confidential that's the reporting of a routine court procedure and it should be open to inspection because that person is an officer of the court and we should i understand what the court did but i'm trying to figure out why it came before me it's either a motion to quash or it isn't there was no i mean i had seems to me that in order to get it in for me i've got to have some standard or review we didn't even argue about what the standard are review for me to review this on the governor not talking about whether the miscible whether the evidence is admissible or not we're talking about whether we should have this review we would suggest that the court consider under the hanks and standard well there the district court announced the proper rule to use to exclude this testimony under th implausible illogical or without support in inferences that may be drawn from the facts in the record right once you decide whether she applied and identified the appropriate rule which the government does not believe that she did and  the statute regarding confidence for information is that correct i mean yes which is defined as if in the course of performing pretrial services function in relation to a particular accused and the reg that explains that says information obtained and developed yes you are so this pretrial service officer seems in their phone call was obtaining information developing information that's clearly seems to be covered under the confidential provision i see my time has expired going on or asking question so it's ok your honor we respectfully disagree we're not interested in information that this pretrial services officer develop or obtained during interviews with the defendant it is information if it is information that the officer obtain or develop it's covered by the confidential information definition so tell me just go with me how do you how do you get around well first of all this we believe this is a notification of a court procedure not obtained or developed therefore it doesn't fall within the definition of pretrial services information so the information you want yes is what the officer told a family member of a supervisor and what the family member told the the officer no your honor we only want the first part about you see your way why isn't that covered because she's working what was the purpose of her call the purpose well theoretically we would say the purpose of her call was to tell the defendant's husband that there isn't a warrant for his wife's arrest to answer your question in another way the fact of this warrant also became a matter of the public court docket docket and under the definition of pretrial services information information appearing in the public court records are not considered confidential or pretrial  records and you could use that but you want the conversation you want what she said yes we do and it's not quite sure that well we have a difference of opinion on helped well i guess that what position at the time that she was interpreted in this that no one's really disputing that anything relative to i want to know if it was mrs is it mrs santa or mrs santa that no one's really disputing that her handling of mrs santa that that was all part would come under thirty one fifty three c your honor so the question is is there any case out there either way that  what so we're saying we're establishing like a privilege there is there any case out there otherwise that other people get to assert the privilege beyond the but i guess you would cut the person is being supervised by the person that's under pretrial services no there is absolutely no case law either way we could find the only thing we could find regarding a family member or a third party member is the stevens case which we cited in our briefs which mentions that the defendant here in this case mrs santa may have some interest in her family members having a measure of confidentiality with pretrial services but the court said that in dicta was the third circuit they didn't explain why or how a defendant would have such an interest the facts of the case seem to say that the defendant might have such an interest because they don't want their family member to be impeached with prior inconsistent statements ok so the judge here said that it could be used for impeachment and i'm assuming that i'm just sort of playing out the scenario that mr santa would get up on the stand and say i had a no knowledge of the fact that mrs santo was a fugitive and then voila whatever the statement is out there that no one seems to know then he doesn't get it he doesn't get to say that with impunity but you want to use that in your case in chief to say i want to present a stronger case in terms of as far as that i don't want to wait for mr santa to lie or and mr stanton could choose not to take the stand as well but is any where did the judge the district judge so since no one seems to know exactly what the statement is and were all surmising based on our own trial experience you know how this would come about did the district court ever in lemony review this or because i don't think we have anything sealed you know that so because of the district court had so i'm assuming what they're just the court was saying if it comes up in trial then you can run up to the bench the moment that mr santa said i knew nothing about it and say oh and then the district court then would go in chain in camera and decide whether there was an impeachable statement there but the district court allegedly as far as we know is only guessing what it is we're all guessing at this point i don't kind of guessing with some experience we don't know whether the pretrial services officer made this notification or not my impression was that the district court ruled specifically on the statute and the regulations without so is the pretrial service officer afraid to talk to you because of the statute and once either permission once a ruling on what the pretrial services officer can say either to you or mr reichl is that right we have a very good relationship with pretrial services i don't think this officer is afraid but i do think i'm not afraid but i mean is is because there isn't anything specifically out interpret in this statute as to what is the breath of the privilege here the regular the confidentiality the regulations prevent her from honoring a subpoena without the judge giving her the go ahead had been so this would all be fair game in your view anything that a pretrial service officer says to a proviso or a family member the u s attorney's office could then  to tighten up its case before trial you know your honor not at all how is that not what you're doing here here what we're interested in is a notification of a i know what you're saying that's fair game because it's not confidential yes so then anything that officer says i mean taking your interpretation that would be true no your honor we would believe that any information that a pretrial services officer communicates that repeats confidential information that she has received from the defendant from another family member anything that falls within the confidentiality statute which is obtaining and developing information you know we don't know what the officer says but just m looked over everything and made a determination that the confidentiality is more important than whatever reason that you presented and it seems that the statute underscores the confidentiality the regs underscore the reason the important reason for the confidentiality and my best take on your argument is that while even if it's in just this circumstance but it sounds like it could be used based on your reason that whatever the pretrial service officer said is all we want and that doesn't fall within the confidentiality agreement are you saying that a warrant for the like to hear thanks our answer is threefold we don't believe it's confidential information because it wasn't developed or obtained it also went on the public docket which under the very definition of pretrial services in w told that person did not go on the public like what we're interested in is what went on the public docket i'm going to go to the police socket we need to we would like to show that she told the defendant that there would be or was a warrant that now out on the public docket it is a matter of public information officer told that person is not on the public docket that's what you want so your honor once again we don't believe it's confidential but assuming it is we believe we have a very good good cause case and here's why there was no promise of confidentiality to the source of this information which was the pretrial services officer herself there is no harm to anyone for releasing this information the objective of the confidentiality statute is to protect the relationship between the officer and the person who is supervised here that relationship is over because the supervisee is in federal prison and finally the last element is that the purpose of the disclosure here is important it would allow the government to prove a very difficult element in a case that's related to flight you're saying you could not prove it otherwise i'm not saying that but that's what you just said it would allow the government to prove a very important element it certainly would help the government prove it would be additional evidence it would probably be the most convincing evidence because it's the only direct evidence that whatever have and the case should have never been brought if you didn't think you could prove beyond a reasonable doubt yes or no we do believe we can prove it beyond a reasonable doubt that's the end of the inquiry then we would have a difference of opinion there because the government never stops investigating we want to bring the best case that we can and here your honor to not allow the disclosure of the information allows a criminal defendant to do exactly what congress didn't want him to do which is to shield himself under a confidentiality provision dishonestly in a case that involves the flight of a person who is under supervision there's no reason if somebody goes away without telling somebody and they should be prosecuted that's what you're doing and if somebody was shielding somebody from being found they should be prosecuted that's what the charges against santa is correct yes that he harbored her the wrong assisted her but you have to do it with evidence that you develop in the course of the investigation that you bring to the grand jury that the stablish is at the minimum probable cause but that the prosecutor knows that they can true show and prove beyond a reasonable doubt to a jury and i just wondering why we're having this discussion at this point in time so our position your honor is that there's no reason not to admit this information our view is that it's not confidential even if your honor disagrees we have a good cause argument a very good cause argument for having a disclosure here because there's no harm there's no harm to any particular person no harm to the relationship there and it was a confidentiality but i guess you know  think that's the reason i focused on the stand yes i made those arguments ginge the district cork for the good cause argument your honor i know we were in a position to do that the good cause provision is only included in the regulations noble review well then at that point i'm going to decide whether it's a law implausible illogical or without support of the inferences and that's why i ask you the question yes you are so we believe that this is in a logical conclusion and a because the statute and the regulations itself allow for an exception for this information in a case that involves the flight of the defendant in this case obviously we're not charging the failure to appear but that crime to which mrs santa has already pled guilty is so an extra complainer twined with the case that we are bringing now that it would be a logical to exclude this information from a case against mr sante when we would be able to admit it against mrs santa furthermore we do believe that before you reach the question of whether the conclusion was illogical or implausible hinkson requires you to examine whether the trial court identified and apply the collect legal rule and here we don't believe that she did she didn't make a finding on whether this information was in fact pretrial services information she just said it was unclear and secondly she didn't apply it comes to me and i'm just trying to get that's why i'm asking the questions this comes to me without even thinking about what is the standard or review in my book it wasn't really put in your briefs what the standard view is for me to decide this question don't and so therefore i look for that and that's why i ask you the question then if i find the standard that i'm drawing to apply that's why i've asked the question i appreciate your answers that's all i want ok thank you is there anything else i know i  imply i don't know do you have any other questions i guess mister was there did any of the colleagues have any questions they wanted to ask of mr right call all right thank you for appearing and thank you both for thank you for your silence and thank you for your argument thank you this matter will stand submitted thank you respect