based upon the letters that all of the purchase orders in the invoices were false the problem is is that there was never any evidence deuce during the balance of the affidavit which would support the fact that there was any loss that was ever occurred to the to the company's central concrete supply company and we believe that that's was the starting point and as the court knows that a warrant based on merit conclusions of the a fine gives the magistrate virtually no basis for making a judgment regarding probable cause the other is as the court knows from the old case of aguilar versus texas where you have an un and then a fight informant the if i and must set forth some underlying circumstances which the office concluded from the information that the information from the anonymous anonymous informants was credible and that the informant spoke with some degree of personal knowledge now the letters themselves  contain sufficient details from which to prove that the person or persons writing the letters spoke with personal knowledge now or with any degree of reliability now we believe that judge hamilton erred by denying our frank frank's motion in that regard we set forth six specific statements in the affidavit david that we maintained were false and we did come forward with evidence in the form of a declaration from mr steffanie a declaration from mr beecher a mechanic that worked at central concrete supply company from mr burr sac as family law and from mr damer the civil lawyer and we also provided the court with an exhibit that we put together from records from the state board of equalization now  six statements that we refer to in the affidavit that we think are false the most egregious one that i see is the one pertaining to the allegation that mr steffanie filed false sales tax reports with the state board of equalization and the affidavit is clear that miss fast hour went to the state board of equalization office and she says several things i reviewed and had access to the records on file from mistress to funny with the state board of equalization i also spoke to mr reboil and investigator with the state board of equalization now what we did is we partied together an exhibit for the trial court judge to review and regarding the state board of equalization records and we did that to show and to prove that mr steffanie filed accurate true and correct sales tax records with the state board of equalization for each and every month during the relevant period of time from august of two thousand and two to november of two thousand and three so you must assume based upon what miss fast arthur says she also had access to those records the problem is she went further and saying that regarding another codefendant she not only looked at the records according schemes where people only report a portion of their gross sales and only pay sales tax on a portion of fraudulent income let's assume that she was just simply mistaken and that's see this is where i don't think that  minister the tax records and therefore that she intentionally omitted or recklessly omitted accurate information well i think that she intentionally left out the records regarding mr stovall but the records are complicated i mean  we gave you exhibits with children each and every month that he filed and we also showed and the money got from central concrete for the parts that were sold and delivered if you add up that total amount of money for that month and you compare it to the gross sales tax recorded by mr so the funny for each month he accurately reported the gross sales and the gross money that they coude was getting each month from central concrete supply company now what she did and this is where there was a certain amount of gross sales that he reported but he paid no tax but strangely she says nothing about the gross sales reported by mr steffanie now the gross sales reported by mr still fi show and prove that he did not follow a fraudulent scheme of and that's just simply not true and these records say it is not true it proves that they are not true and she had those records she says in the one of the paragraphs judge she says i reviewed the record so she can't come back now and say well i didn't look at them or i inadvertently didn't look at them so our position is that is one of the six statements that we clearly proved we proved that that statement was false and we came forward with that evidence not only the exhibit but the testimony in the declaration of mistress defining and mr beecher that kind of dovetails into that issue what did you prove and fourth any invoice check then what we did is we took that gross amount and we look to see for that money in his monthly sales tax report did he did he report the same amount of money as gross sales that corresponds to the particular chack for that individual month and if you go through each one that match up i mean with a difference of dollars over the minors sense and someone face a dollar or something but they match that he was reporting those accurate amounts of gross sales tax this is an extremely important point in the overall evaluation of this warrant because of the fact that maybe in mr cowell's case you didn't report all of his gross sales mr stuff i did so if you want to say yes mr reed why did a person involved in a fraudulent scheme only reports a small portion like mr carwell well the reverse of that is true also reported and she and it was isn't that may be accurate but isn't the government's response she was convinced that it was fraudulent to begin with so he was reporting fraudulent taxes or fraudulent making phone fraudulent reports because there invoice and then she said another thing there is no evidence in this case that there were any of the parts built for were ever delivered or installed on the truck now that statement was false that statement was wrong there was no evidence of that and mysterious the finding in the declaration that he cited and in mr beecher's declaration we clearly showed that the evidence that shows that the parts were sold and delivered to the company was the repair work orders there were some eighty five hundred pages of work orders but what mr mr vance are doing judge did anybody did anybody actually inspect and say i inspected in fact these parts were in there but how would you know so you're more this was our point you can't tell if the company lost any money and you can't tell if all the purchase orders and invoices are fall in la wasn't any evidence yes there was evidence that the parts were sold and not only sold and bought in delivered but they were installed on the trucks so if you just go to the repair or you take the purchase or make the invoice purchase orders have part numbers you then go it's then the mechanics duty to take the part partner prepare a report or repair it and it says this part was installed on this truck on this date but what would you ask as a reasonably well trained investigator when mr catch of the civil lawyer brought this to the d a s office you would say well how do you know that these are false or fraudulent how do you know the company actually lost any money and that then they would have to respond well the inventory control system that we have is such that you can tell if the parts are installed on the trucks or not by going and pulling  which was as i mentioned compared to the work orders or earning an auditor from the company where the auditor could say we did an audit and under our inventory control system we ran these and there was a loss who she was trying to do was to establish probable cause wasn't right and but if you don't get to the point where there's at least some evidence that there was a loss which is the basis of the crime of theft or embezzling where there were the recent books that were missing and i did well what they say was not found in this one day it's just one day that they went to look at the south san francisco plaque they said well we didn't find any evidence that were missing well there were their purchase order books and there were several that were missing and several of them they did not find at that location but that this here is what this that they may not have been able to find any of the purchase order the the last copy of the purchase order books and south sam's sister doesn't mean that any crime was committed because there's there's no way to get rid of the original the original goes down to san jose so we're you know we were just saying it we're saying that look we think we do more of the theater and it justify the  the branding and the frenzy that we and we can't part with enough to show that and the most egregious is the state court records and the second one is there is no evidence that the parts were ever delivered and the third one is that it's just a conclusion based on and assumptions and assumptions based upon the letters you have some of the points you want to make well then you get into the other evaluation assuming that there is probable cause in our position is you put the truth into this war then the magistrate would have said wait a minute something's wrong here you've got to go back you've got to look and see was there a loss of what did the  any of the purchase orders to the repair work order and then when the magistrate knows that look you know you're wrong on this with the state board of equalization misters the funny file true and accurate reports with those guys so wait a minute we better and that's why we should have the franks hearing process them to confront this fast and we don't believe you can save the warrant by the good faith exception because of the fact that it's so clear that she had those records she had access to those records and how can you say she's acting in good faith when it is so clear is she deliberately left out the information about mr funny but she put the information in there about mr cuomo and i and i need to reserve at least a it please the court my name is assistant united states attorney joseph as you know lee and i'm representing the united states in this case the district court did not bear in defying in denying defendants requests for a franks hearing challenging the search warrant of his residence which found his unregistered machine gun and silencer the government's primary arguments in this here are two fold first that the search warrant strip to its uncontested facts supports probable cause and secondly that the defendant was not entitled to frank's hearing because as the district court correctly found he did not beat his burden of proving any deliberate false leads in the warrant that factual finding was not clear as to the first argument the following uncontested facts in the search warrants support probable cause to letters initially two letters have been since a defendant's employer central concrete alleging that he was embezzling from central concrete using fa purchase orders placed to a company called bay cal an investigation subsequently revealed that central concrete had paid over four hundred thousand dollars to bake al for suppose a truck or truck repairs defendant while working at central concrete generated initialed the bay cal pers just orders the four hundred thousand dollars in money that was paid to pay cal was paid into defendant's bank account a search essential concretes maintenance records found no purchase orders or invoices with the name big house a visual inspection of four central comps central concrete trucks found in cations that bay cal had not actually completed the repairs for which they are for which they were paid there had been a drive by of the of the defendant's house which was the address that was linked of a cow indicated that it was a home and not a garage or a factory they cal was unincorporated in the state of california unknown to competitors in the cement truck parts industry unlisted in telephone directories and did not advertise its services it was run out of the defendants to findings home allegedly which was the subject  the above uncontested facts support probable cause the defendant was involved in investments secondly the district court correctly found that the defendant had not met the high burden for frank's hearing since you submitted no proof of a deliberate false disregard for the truth he contests the accuracy of many of the allegations in the search warrant but he does not provide any evidence that fast our intentionally or recklessly misled the state court the defendant has not met his high burden of proving that there are any one review of the california board of equalization records it is my belief that bonnie in caldwell falsely reported sales taxes what was that belief based on history boy that ordinarily when people files you a little bit but the focus income is not correctly reported you know the tax people generally don't care whether whether you over report or or you pay sales that may have been fraud you want which seems to be the case here that i don't understand what the tax offense to be what the tax crime would be and this seems to say that there's a tax crime and you're now suggesting that what she meant was the sales were false maybe she paid taxes that she shouldn't have paid but that's not what i get from the affidavit i read it say that something's wrong that the taxes are are are being under reported the way they but also and for supplemental declaration and she addresses that it excerpts of record two six eight this is in a supplemental declaration in which she put forward some of her thought process regarding the supplemental that the judge relied on this supplemental declaration in order to night the franks motion and that's of little decoration was not presented for the issue of bolstering the probable cause in the original affidavit drafts some of the defendant's issues that were raised in the initial franks motion there's a call before me for using that is that that suggests we're not going to have a hearing we'll just let the investigator tell her version of the story without cross examination the more you have to look to something outside the affidavit to explain the affidavit the more the crack of the door opens a little bit for the possibility of needing a frank's hearing so i kind of i'm a little wary of encouraging you to refer to the supplemental declaration i ask you to explain what's going on here you're suggesting all sales was there anything that gave the investigator a basis to suspect tax evasion there were indications that the that the defendant had made a false reiterate i don't think there's any evidence that the statement was made deliberately false or with the record it was recklessly secondly government would also submit that the that the section of the warrant that talks about board of equalization is not necessary for the finding of probable equalization that all of those facts which are uncontested would be sufficient to establish a finding of probable cause against against the defendant and so i think that to the extent the court is concerned that there may have been an element sloppiness or or even arguably recklessness i'm not conceding that if the court is concerned has concerns about the statements regarding the allegations of tax evasion that this warrant has significant facts about hearing but i think even if you take that everything related to the board of equalization of the tax evasion allegations out the remaining warrant standing on its own is sufficient for for sufficient so that the defendant does not merit frank opinion of the mr beecher as i would say that is that that that essentially challenges one of the conclusions of the challenge is one of the conclusions of a thousand fast hours affidavit which is that the  those four central market trucks mr beecher's declaration does not refute that that inspection took place it simply says that you know based on his experience that you know that there are certain ways in which you cannot commit make an inspection saying in fact i found the part that they said wasn't there and it's actually there it's not my knowledge that mr beecher conduct an inspection of the four specific trucks that that had taken place and in any event even if even if there had been an issue of that the inspection even if the issues that suit for argument's sake that the at the questions that mr beecher raising about acid effecting concrete and things if that were accurate in fact that does not necessarily prove that statements that inspector fast are put in her warrants about parts and services not having been completed were were were deliberately false or in any way reckless again it at worst the defendant is raising issues of negligence that perhaps there was a different false or a reckless reckless reckless statement that merits of frank's hearing it's a fairly high bar that i think that the district court was correct in saying that the defendant has had presented no evidence that there were any kind of deliver false words or reckless statements in model first of all my understanding is that clear proof of deliberate or reckless omissions is not required and that that level of proof is reserved for the evidence for a hearing which we were asking for  and bringing forth the records from the state board of equalization mr beecher said a lot more than what mr fazakerley just mentioned that he said mr beecher said number one here's how you tell whether or not the parts were installed on the vehicles or not you have to go to the repair work orders it's the mechanics that prepare the repair work orders not mistress defining that's the first thing he said the second thing he brings up is that you can't tell whether these parts are installed or not installed on a particular vehicle by looking at the vehicle some four or five months later because of the nature of the cement trucks and the way that the acid eats away at the parts and he also mentioned in his declaration that he had had an opportunity to talk to miss faster and he tried to bring out the system is fast hour and explain to her that what was going on how you tell whether or not the parts are installed or not and we refer to that in our in our briefing the other thing is i don't have time to go through each and every little point that mr fazli only raises as to why he thinks there is probable cause in the warrant in the first place i answered those and i went through them in great detail i in preparing my argument i wrote them out it took me like a forty five minutes to write them all out so i don't have time to respond to him i just have to refer to my brief i tried to answer them things like where he would say well an incorporated well that doesn't matter that in showing the thing doesn't prove anything and there were a whole lot of things like that that were in the warrant my position is simply this those records from still board of equalization are so strong evidence for us that we should have been given a franks hearing and secondly when she says there is no evidence that the parts were ever delivered or install that is not a true statement that is just not correct there was evidence there was eight thousand five hundred pages of repair work orders that would have proved that those parts were not only delivered but they were installed on those vehicles just li declaration and just like mr is defining was saying so for all of those reasons we believe we should have had a franks hearing to start with you can't bolster this warrant or affidavit by coming in with a supplemental declaration after the fact the warrant is tested on the four corners of the warrant you can't go outside the warren in any event but that just shows the weakness of their argument when they have to come forward with that kind of evidence and what basically we're saying is well we have a right to cross examine her and give us that right give us a fair hearing let us set up shuffle it all out and then we'll see whether or not this weren't can stand or fall i don't think you can thank you thank you thank both counsel for their