obviously after the government's thirteen day case in chief judge you found that no reasonable jury could find mr conrad or any of the other four defendants guilty beyond a reasonable doubt you granted rule twenty nine motion that this is a very odd case to federal court claims that i think is problematic the federal tort claims act would allow us to pursue a federal government agent for malicious prosecution and false imprisonment with respect to delay in bringing it before the magistrate if a private person could be so charged in the state of california the state of california outlaws false imprisonment including delay in bringing someone t the magistrate whether it's a private person or a law enforcement officer malicious prosecution in california also applies to private citizens as well as officers so that's why the federal tort claims act was brought with respect to both of those issues we have many pieces that they're analogous to the one you're bringing there are a number of cases regarding are you talking about the delay or are you talking about the malicious prosecution i was just talking the non discretionary function of the i r s agent in this case who caused the arrest of mr conrad was a case agent in the rest of mr conrad and under the bed reports claims act we can bring a claim for malicious prosecution and false imprisonment including the delay in bringing him before the magistrate i'm so asking if you have any cases well there's a whole chapters in which ten regarding delay before the magistrate the section four forty five tenth edition torts summary of california long standing all that and i was just wondering if anybody this is kind of an unusual case and i'll tell you why is that for some reason at least in eastern district of california in fresno where i was a long time federal prosecutor none of this would have happened then where you would arrest somebody on a warrant on a stale investigation and instead of summoning that person in he's a law enforcement officer he's not  run you arrest him at two o'clock in the afternoon take him down to the federal building and it's not like the federal building in san francisco where you have twenty four flights he's house thirty feet from the nearest available  they have the warrant they have the complaint take him in before the nearest available magistrate as both california and federal law mandate that you do know iris wants to interview  rights still don't know why he's being charged with doing well shoot oh now it's after five o'clock let's take you to the jail an officer in the jail without his pain medication because we have to recall that at the time of his arrest he was out on medical leave from blowing out his hip driving a patrol car for the city of fresno do they bring him over on thursday january fifteenth no another twenty four hours the law rule five a the federal rules of criminal procedure california law california constitution the arresting person whether it's an officer or not the person arrested must be brought to the nearest available magistrate without unnecessary delay and in the federal law if you don't have a federal magistrate or a federal judge around you take him to in the nearest available judge authorized which would include twenty five county superior court judges who are two blocks away from the federal building we have three judges full time in fresno at this time it is sense that three magistrates all within one hundred feet they don't take him before the nearest available magistrate he sits forty four and a half hours in jail when everybody knew he'd be out on his own recognizance if he was arrested under a state warrant to have a statutory bail he would have been out within a couple of hours let's keep him in jail because maybe we can get a confession out of him that he knows something about fresno state basketball point shaving which is what this investigation is about and never went anywhere the investigation was basically concluded the first week of january of  seven they don't arrest him for a year later and don't take them to a magistrate when you look at the affidavit in support of the arrest warrant by agent osuna and is spelled out in detail in my the other basically hornbook bedrock principle in the united states is we have to have magistrates look at probable cause to make sure that there is probable cause because we don't want to leave that up to a law enforcement officer who whose judgment is clouded by prejudice bias the idea to arrest someone the feather in the i r s is kept is to arrest  cop every article that ever came out the fresno bee and there were a bazillion of them lead with mr conrad's photograph he can't get a job in law enforcement more he's done on that because he was indicted warrant in support of the arrest warrant was filled with conclusions lies misstatements  it's embarrassing to read it it's embarrassing to think that an agent could submit that to a magistrate for the magistrate to determine independently whether there is probable cause when you district court found the suna did not lie what the magistrate what judge issued said in the civil trial following the court trial unfortunately we're not entitled to a jury trial and torts claims act cases  was that because assistant us a color's reviewed the affidavit and it looked ok to him somehow that would give her immunity but it wouldn't be lies because she wouldn't take a chance in actually line because callers was going to look over the affidavit and then judge if you made the same statements with respect to her  us inflammatory lies before the grand jury and he says well since colors was asking the questions before the grand jury she wouldn't have been intentionally trying to be deceptive because colors would have noticed it and corrected it they even called colors at the trial in this case which is another i think violation of due process for colors to remark what he thought mr conrad's involvement was in this book making organization on cross examination of mr colors the judge said he cannot the colors i could not going for further because mr colors cannot insulate lindo sooner or the government now  from being deceptive or line or deceiving the magistrate at the end of the trial and in his decision that's exactly what he did he immunized osuna because scholars who has a munity rule on arrest is not colors to get him before the nearest available magistrate it is the arresting officer so we have a judge if she refused to allow me to cross examine mr colors with respect to the information in the affidavit the lack of investigation the lack of providing exculpatory information i couldn't go there because as far as he was concerned colors could not insulate windows suna he ended up ruling that he could i was deprived of cross examination on that very topic so what we have here is two critical issues in california and the case to be all over the map you have franks versus delaware and you have the ninth circuit case ellie versus butler in this decision that talks about the lack of investigation talks about the lack of facts you have now obviously i'm the first one to recognize if this was a fast moving case and you worked on it for four days and you know there's drug busts and there's armed bank robberies and you have to act quickly to get the thug off the street you may not want to check out some alibi that somebody may have had for this person if you have all the eye witnesses you have the fingerprints you have all this stuff this was not a rush arrest five months after they said that they were done with the investigation which is actually a year after they were done with the investigation and so you don't tell the magistrate things like theory was is that mr conrad was an enforcer to the bookmaking operation that he was a recruit or he got people to bet within the organization and that he is the one that ran the background checks on all of the best tours plural well she had to admit in the trial there was one bet or and that was their informant mr conrad ran one license plate on that one individual because he stuck out like a sore thumb any reasonable cop who see some guy with a cowboy hat in on rocking into a sports bar in fresno this is the home of judges attorneys doctors lawyers and he walks in there and he pushes his way in he wants to start betting i'd be suspicious too he runs the guy finds out he's parlier p d he was fired from the parlor police department but many events but she says he ran the better she had to admit there was one he ran plates of recruited bettors no evidence he recruited anyone the only thing mr conrad did at the bar watching a football game is he said to the informant get your ass in and bet it was a football pool not bookmaking but he's a recruiter for the for this gambling enterprise this big point shaving thing which was never proven and secondly before you run out of time i think we get the drift of the probable cause issue can unnecessary delay does that not destroy the notion that it's there's an absence of discretion doesn't the doesn't the rule itself embody discretion well this isn't the park the matter is is that they're relying on discretionary function judges she said it's just for russian ery as to when they bring someone before the magistrate as long as it's in within forty eight hours it's not roofs of cases we have to come with them well shall without unnecessary delay it's also like probable cause there is wiggle room on probable cause but if you don't have probable cause you lose your warrant can be a bevan's action it can be torts claims act but in people versus thompson and the california supreme court decision that talked about the unlawful delay or unreasonable delay under california law and the california statutes and the california constitution tracks basically rule five and it says you can take into account health considerations and one in health issue here you can take in account you have to complete the arrest the arrest is complete he's down at the federal building at two thirty in the afternoon he's already booked in the federal building you can take into account transportation to court he's in cour he's from here to there to judge snyder you can allow time for the attorney to evaluate the case evidence only a determine the charges to be filed the charges have already been filed the complaint is issued based upon the arrest warrant that was secured the day before his arrest no delay there and you can complete the necessary clerical administrative task to prepare the formal pleading the formal pleading was done the day before that will didn't apply to the judge's you've got three judges there two secondly the rule ignores i mean that the little administrative role that they came came up with a wasn't a rule when i was there that rule that they came up with ignores the you may want to save some time for your rebuttal you're down to two minutes  was no questioning after the initial interview on wednesday so there is no issue about whether this conrad was held for the purpose of interrogation con artist how separate from the prison population he wasn't mistreated there's no evidence that the fact that conner was a police officer had any bearing whatsoever on his arrest or prosecution and the trial ruling was much more detail than counsel suggests it was not just the prosecutor but it was two other investigators who reviewed all of the evidence in the affidavit conrad basically criticizes the quality of the investigation and this these decisions are clearly protected by discretionary in addition the trial if the trial court ruling there were several their findings made regarding probable cause and a lack of wise but i think i'll start with the summary judgment motion rulings challenges of course the two rulings the district courts grant of summary judgment and then the district court's ruling in favor of the government on conrad's malicious prosecution claim that's the summary judgment ruling the standards are no go but the scoring affirm on any grounds supported by the record united states demonstrated that there the home need at that time then their next arrest for me with a public restaurant bar that was involved the oval room where these where the arrests were made after lunch hour and that was made done to impose the most minimal scheduled times allowed regularly scheduled but it was judge snyder magistrate judge snyder inner office wednesday afternoon thursday i have no idea yet and there's no evidence on the record on that i have no idea the counsel so is  really that would have to be the prosecutor to make that call which of course conduct is completely protected by the discretionary function or her function was to to follow these rules and she was told by a prosecutor colors that the defendant could only be arraigned if these particular times she's working with prosecutor colors i don't see how she could go to a different prosecutor a different attorney to have the defendant arraigned and as the record establishes the time of the arrest was was clearly indicated by these considerations that i've mentioned and exercise any judgment here we'll just go by what the magistrates have set up as their schedule and sort of and then invoke the discretionary function exception saying well it's a matter of judgment doesn't sound like there's a matter of judgment it sounds as though the government's using the magistrate judge was setting a convenient time for most cases and saying well we don't have to we can of course the agents were subject to the court rules the rules don't preclude bringing like your point is that she could go in without a prosecutor and if the french accusers and we're going in on friday that there's the end of the story that does seem to be the practical end i don't see how she could have sought a different attorney to arraign mr conrad look there is record evidence that that's exactly what happened that she said look let's bring him in now and the prosecutor said well the record demonstrates that the decision on when to arrest mr connor was made he was arrested two thirty which of course is past eleven o'clock time and that prosecutor colors told the agents you can only have your defendant arraigned at eleven o'clock monday wednesday or friday the discretion here is without unnecessary delay before the nearest available united states magistrate or other nearby and then the other rule really at issue is rule friday which has very similar language take the arrested person without guideline there and in the second prong is that the decision is based on considerations of public policy and public policy considerations here that the court likewise ruled that's this was the the particular defendant has a need to require a quick arraignment such as mental or physical considerations or you're given it's in the abstract what you told us is a matter of fact is that they just have to cater to their schedule and what they were told by the prosecutor was sound like she was prepared under your scenario to do any of that analysis because she was going to defer to what the prosecutor told when practical terms that seems to be the case and i suppose she c tried to compel the prosecutor to make a different decision but in reality is a prosecutor's decision which is absolutely protected in this question function in fact it's not even actionable into the tort claims act but in the earlier summary judgment motions that the judge didn't agree with that argument and so we went forward and and had this ruling that's before the court in time on to the trial i guess the well five and the reason he was charged which because he ran this class check which is counseling law enforcement telecommunications system check for the gambling organization on the plate of the suspect thank you with respect to the last point on that eighteen u s c section fifty five obstruction of the federal investigation this court held us versus price which is in our brief that has three essential elements two of those elements include the fact that the target mr conrad in this case knew that there was a proceeding before an agency of the united states when he ran the class the first week of january how did he know there was a i r s investigation as windows suna conveniently told the grand jury a year later this was a sheriff's office investigation i was only providing backup i was providing cover in the elbow room bar as an undercover person but it was an s so investigation but conrad  he called the lieutenant of the vice unit the president police department says you've got something going on the elbow room if you do the guys burned this before you ever ran into richardson e c u testified at the hearing said we don't got nothing going on y magistrate you don't need a prosecutor to be there and finally on this the issue of the i wasn't attacking the quality of the investigation i was attacking the fact that was not brought before the magistrate if conrad is a big enforcer of this organization he was a recruiter they had the pen register they had all the cell phone records he did not disclose to the magistrate there's not one phone call between conrad and any of