if the core of my core fell on the f a united states i would like his or a few minutes for the bottle your honour's in this case the judge that issued wiretap orders judge snyder did not accuse her discretion in doing so the affidavit the support of the wire can identify all the members of the conspiracy at issue and to garner evidence on them at the time of the wiretap affidavit the government was only aware of two particular artist in that in the one he says the government did not sufficiently use confidential informants or provide a full and complete statement explaining so your failure to provide a full and complete statement seems to be this whole conspiracy just not the tour of the fair even if they had made a large purchase from gomez well i would have thought was one person yes and the importance of a broader conspiracy i suppose that shown by the fact that here it was the cases district do perhaps at that stage we would need to come forth with more information but we believe the general matter it's enough to say this information is not available because in qatif but we went further than that here your honor so we explain little time for mr dudley who represents a codefendant and i'd like to go directly to the court's concerns from your discussion with the opposing counsel first of all i want to address the standard of review which is i think very clear from the cases of the night circuit and it's very well articulated in judge parker's two keys order in this case which is in the record between five fifty three and five fifty six he starts out saying that that he is going to apply even though the government argues that the no vote that abuse of discretion standard should be used he says that this court must review the noble whether a full and complete statement of the facts was complete was that the government had not given a full and complete statement why traditional investigative techniques have been used specifically informants just and not just one informant bussy that's quite different they explain why they were using didn't that i was looking for something omissions there's no talk about mailboxes no talk about physical surveillance there's no talk about other ways to do this there's no there's no talk about how you can say it's awful incomplete because they left out all these traditional methods that's what you're after do traditional methods give you an opportunity to a concert the same thing without intruding on everybody's life of why or what method that they leave out that they might have utilized that specifically they had inform they could use and they did not use them sufficiently didn't but they gave a full and complete statement as to why well you are but one complete statement is there it's whether or not it's persuasive and it's judge now justice kennedy said and braun when you get persuasive but it was full here are all of our informants all names by numbers and everything else here's everything and here's what we might do with them but they're in custody and so in our judgment as investigators we don't think this is this will work therefore  him out of jail that's still full and complete it's just not persuasive to gel as well he says more than that though he said he doesn't say he just didn't let one out of jail he basically notes that the that the government that the appian basically it yes it is full and complete full and complete well and he says you haven't persuaded me that's where he made a big mistake he confused full and get to the people with whom they have direct contact but this is obviously a large scale operation and we need something more than that there's no way we can go to the courses of supply or who are there distributors well the government's mentions mcguire you're out of mcguire is very good it's easily distinguishable that's was it was in mcguire they nice and they did say that in a conspiracy the government the standard maybe like you but they also mentioned four or five times in that decision it's because it was again they were dangerous they were trying to hold grow the government there's a line of other cases that say that just because it's a conspiracy should not prevent should not allow the government from not giving a full and complete these things in the united states for four years when i was in town the assistant attorney general had to review these things personally i read hundreds of these things and so i thought oh well here we're going to go there's something missing and i went through here and i first of all saw in the society the identification of everybody identity of roll the main customers the locations where the stuff is imagine the proceeds and then i see undercover agents confidential informants that they leave that they have an informant that they left out no not that i'm aware of ok i'm not either so that's a full and complete statement of who all the informants are and why they don't think it's going to be sufficient then they have physical surveillance ok that's a traditional category that i read a thousand of pensions or traps trace devices search warrants interviews grand jury subpoenas they go through every one of these things trash searches even which sometimes they just they haven't those or they didn't consensual recordings and financial investigations with police reports arrest records male coppers and i'm saying what's missing the answer is nothing well he agrees with you on fact that the government i believe that he was implying in his order that they manufactured necessity by setting up these informants they had an informant ready to make by on june twenty eighth a month later the government the f b i stopped that stale on the on the grounds of that and attempt to maintain some credibility for the informant in the large scale drug drug distributor they didn't want him to wait a month later the target called them in to here i am i've got the good stuff let's do the deal and the government says oh we can't let him out we can't do that now because he's in custody they make no attempt nor did they give any reason why they did not certain our motion and we were ready if need be to to cross examine the agent but judge talks do not find it necessary to do that and i was going to say that one week later and i think that that that the judge the a number of attempts that were available the number of opportunities that were available and i would also as an add that the case does hold that even if as your honor quick to question even if they are looking it's the best professional judgment that those traditional methods of investigation would not reduce the result they were seeking innocent yes your honor even if they were painted they can't just use their opinion they have to give how could that possibly do it all i would do is they now have one of the two people who made for sale that's all they could do all they would they have what they were calling the head of the organization for one thing your honor and where that would take them and they might do more this was a big deal they were going to make a ten kilograms cocaine deal that was ready to be made and the agents potentially thwarted that by not completing it by allowing it to be problem with that is that you can say that forever you can always say that and that's what i would cave in what should they have done in order to identify everybody involved in this room the sources of supply the management customers everybody else in the mining what should they have done in your view will take what they could have done it is what happened in this case anyway your honor they should have made the deal arrested him and then turned him into an informant like they've done anyway and then judge congress dukie mentions that as a thing that becomes kind of surreal about because the government is saying that it's not it is a standard investigative thing and then you have months before this motion they released the guy that they're obviously been around long enough to know that the testimony of an informant without tape corroboration is garbage no no i don't mean point out that he's a very unreliable informant they're using today as we speak we don't know that but those they point out that as all informants as did the one of the case we heard early in this case one minute they're on your side one minute they're next against you the next minute they're on your side but you're on your question is how would they use that traditional technique and give to get the supplier they make that they make that by and what happens i mean you're saying that you have to show i mean it's some point you have to look traditional investigative needs work before you use the more drastic but look love what is your position with they should have done in this case they should have made the ball yes then they should have arrested gomez or not make the buy your honor they should at least attempted to make the buy attempted to make the book by i suppose they made the vault and they arrested gulnaz and then i want to gulnaz and said ok you're facing forty years or whatever it is put life actually a case that eventually a wiretap motion would be appropriate but not at the point where where informants are willing and able there's three informants by the way but i just hope the court doesn't just you know hang a ruling on well we're not going to let a guy out of we're not go rule that you have to let somebody out of prison because that's not what judge targeted he said in his order he never says that he's talking about that they did not fully use the investigative techniques of into using informants when they were on there they were available they were willing and in fact the government slapped him from being obsessive and isn't the real question at what point in the investigative process can the government say the traditional methods will not work in  take it is they asked and got the wiretaps too soon they should have first tried to use informants some more i think that's what the judge's ruling is yes and that's and i would agree with that yes that transaction which could have taken place but was called off by the f b i which take was to go shoot on june twentieth in june twenty ninth we know that but by july twenty seventh the f b i had made a decision to go for a wiretap that's less than three days later agent strickland on july twenty seventh and that's in paragraph fifty one of his affidavit indicated p e a was asked to check its indices for electronic use droppy to determine whether or not these two targets telephones had been intercepted previously so we have been incredibly grief investigation i think that's partly what disturbs judge targus looking why he believes that a full and complete statement was not provided as to why s minimal investigation which was used prior to getting a large that when you had these informants who were in a position to do a direct transaction with the lead defendant what took place between june twenty eighth  ninth not much you have an interview on july thirteenth that takes place regarding gomez's one thousand to two thousand two thousand drug conviction you have an interview on july nineteenth with another law enforcement officer regarding his nine hundred ninety eight conviction you have an interview that seemed a with l a p d one which is used to determine whether or not go mrs boyce is on a tape that was made during the june june twenty eighth in june twenty ninth transactions th obviously made their mind up by july nineteenth that they were likely going to achieve a wire to attempt to obtain a wiretap three weeks after this negotiation head to head was called up to surveillance as well as to july fourteenth in july eighteen and you have some phone market analysis that's it there are cases i recognize where a short brief investigation can often still justify a wiretap but those are cases either where are great number of conventional investigative techniques wiretaps because criminal organizations were weak at the bottom and strong at the top in other words you can do had to hands at the lower level people but you couldn't get the top guys they needed wiretap law enforcement to look at these things and in the light of all cases not just this case absolutely and i think that what in this case to answer a question that donna judge friedman brought up what and what you did to judge trite is what would have been done more conventional investigation could have done we didn't have to arrest gomez or legal after by bust was attempted or conducted they could have been let go that happens all the time let's go and you can and you sort of walk down the line and they said we thought about that and that's not going to get to where we want to go either well what they said what i think judge targets to be saying is that what there's not a full and complete statement because they don't indicate why the use of the informants that type of by a bus in conjunction with discussion of why that used in conjunction with conventional techniques would have not worked with you don't know long term buyer or seller relationship would not be feasible because the government cannot continually make large purchases necessary again know useful information about the government or they don't discuss what about i don't believe that a single purchase of code kilograms of cocaine would develop enough information about the organization judge with with all due respect i think and what lies full and complete i just don't agree with  expected somebody to argue that even if it is an abuse of discretion judge snyder abuse or discretion that was going to be my last point your honor i've been waiting for i think that we have to look at it and that's why i brought up the issue of this is really we're reversing it to say that now we go after people who through traditional techniques we've all agreed have been more easily apt more easily arrestable more easily and died of in this particular instance there is continuing continuing to quibble with you but they say physical surveillance and they lay out all kinds of surveillance by the sheriff's department and everybody else and then they say here's what we've got we didn't get and here's why those don't work your honor just because they but you don't have a lot of surveillance being conducted certainly you don't have surveillance being conducted a conjunction with undercover meetings no where in the in this affidavit is it explained why f b i two and or f b i one could not have been released at least who they contacted on the kind registers before and after those meetings why clinic more conventional investigation have been done and i think that's why even if the standard is abuse of discretion there should still be a upholding an incumbent upon these courts such as this court here to really hold the government to the necessity standard so we don't start using this bribe howards to cause vikki to become a typical investigative tool that's used all the time used it should only be used when it's necessary so when mr lane and i are here we may be speaking on behalf of mr mr goes on this to madrid in a vacuum but we're also speaking on the part of many many americans conversations are intercepted we look at this investigation i would ask the court to really before making a decision review the timeline or look at this investigation look how little was done for the government straight to a wide stack maybe it was right for a watch at some point as mr pilot in a small drug conspiracy and i was the only informant two months after the pilot came to the government with information about the drug traffickers the government