first two issues that we raise raise similar but to state claims regarding two different searches i thought it might be helpful to kind of walk back through the the the factual background the history interception they applied for another title three order authorizing of the interception of work communications on a telephone used by a fellow named our consolo mr summa was ultimately became a defendant in the same indictment which mr asker was charged pled guilty to a a one title twenty one twenty six count i'm sorry and but did not appear as a witness at trial for either for either side in the course of the interception of the telephone used by mr zuma mr asker was intercepted and some of the calls from that interceptions of those intercepted phone calls were used as evidence at mr askers trial in addition and perhaps more importantly the information from this wiretap the second entities under the general corporate on bro of happy's pizza that a search warrant was executed in august of two thousand and ten and really led to the acquisition of the probably the most important ongoing drug trafficking large scale drug trafficking and the laundering of proceeds of trafficking and specifically the investigatory promise was that the drug money was finding its way into a variety of happy's pizza franchise franchisee entities and of course the premise was that this activity these activities the drug trafficking and money laundering were ongoing else there would have been no reason justification for the use of a vote where tapping now we challenged the both the so much and the physical search warrant affidavit on the basis that in both cases the da special agent who was the f b i had affirmatively misrepresented the nature of the drug trafficking such as it was that was going on between the anticipated participation participants in the in the communications to be interested in these things nature are you focusing only on what you argue is the lesser amounts involved or was there anything else to the quote nature no i think you know it it's not so much that there are lesser amounts but that as a necessary and logical consequence of that there is not going to be the production of drug proceeds that need to be laundered which was the ultimate the ultimate investigative goal that is to trace the proceeds of drug trafficking to a legitimate business a pizza franchise if you are buying ounces of marijuana to smoke on a daily perhaps hourly basis that's not going to generate proceeds to launder and that's what the great significance in our view was because in both in both in relation to both the title three application and the rule forty one search warrant the only evidence or the only alleged evidence of ongoing drug trafficking of anything approaching contemporary drug trafficking were these dealings that the agents well knew were not going to be generating proceeds to be laundered so they didn't did they not also have information about from an informant and from the trash pull them in the the tape was the the the summa the conversation about peace laws was not the only thing there residuum it's our position of the residuum of the affidavit is simply insufficient to justice by either title three intervention of an interception or the kind of sprawling all records search which the affidavit which is rule forty one word was out there was evidence that i was focusing on the first wiretap though we haven't gotten to the scope yet ok part it's the same argument of the residuum of the f of the residuum of the problem will cause showing was essentially the same for both the title three and the rule forty one motion the rule forty one application one there had been a trash pool that produced a document with names of people who were associated in very with various ways of with the various happy's pizza franchise franchisee organizations and with the corporate the franchise organization these were managers owners of there were hundreds and hundreds of names from this the affidavit identified six people who had a history histories of being connected or implicated in drug investigations some of these histories went back to over a decade and none none of them were current there was informant information an informant apparently reported that he or she had been told by a manager of one of the franchisee operations that the happy speed franchises were open only to breakers drug dealers miscreants the basis for that information why this employee thought that or believed it was nowhere stated or why the informant felt that that was information that that the informant i thought also had a had a conversation with  the conversation with gloats the about this is the way to launder money was also i'm not sure that that that that's the reading that idea of that that paragraph and i don't believe i think what the what the would go lhotse was reported to have said reported having this suspicious conversation with some pizza franchise employee then went to a contacted i believe our consumer to get some information about what how do i get on this supposed gravy train  he was directed to a an employee of of happy speeds of the happiest pizza franchise or entity and essentially called and was never got a call back i mean the affidavit absent the allegations of ongoing drug dealing in our view at least does not present doesn't offer anything like probable cause to believe that the that were talking about that we were time my problem with a good search so the question let let's assume just for the moment that that we don't buy the wiretap part what do you have to start to defeat the search if we accept the wiretap or as they fall strictly together that is if you find that the wired wiretap was ok do you have anything extra to defeat the search well i have a rise and fall as i think i have overbre records i can't and i just can't think of a kind of record that was not covered by its description in order to end in order to justify it or run record search of a business entity or in this case sixty odd business entities there is a required showing is that it is permeated by unlawful activity is it our view our reading of the problem book or showing either with or without the franks challenge simply does not rise exhibit government exhibit five ninety seven when when the when the government executed the search warrant in august of two thousand and ten it seized of a number of handwritten accounting documents that called don't books in which franchisees kept daily records of expenses and sales there was ultimately no evidence of and no charges relating to money laundering but these documents became the key to the government's to the charges that were brought against mr asker and the others they it they were in the indictment in the government's rule sixteen expert witness showing  the focus and of course the focus was on this very limited number of stores through for which the government had these handwritten records which admittedly in some instances they were at variance with the numbers testified of for the defense this was the focus of the the on the evening after the fourth day of trial exhibit five ninety seven shows up the government government coun says well you know we just didn't know we had it i sure didn't know we had it and it changed everything about the case of the government now could allege based on so on and did a legend did argue based on on graphic documentary evidence that this that this was a stair was systemic understatement of income and understatement or at least the understatement of income my only question on this is as i understand it then asker did testify a day or so later so you'd had some more time to to work on that do you argue that asker would never of testified if that didn't come in somebody else's phone has standing to challenge only those conversations in which they participate and so for this case that means that mr asker has standing to challenge the wiretap only with respect to the single conversation between him and our consumer that was ultimately untrue to trial and so the the practical upshot for purposes of appeal is that everything that's in compassed independence issue one about the wiretap about drugs why these cetera reduces the single inquiry of whether or not the district court judge admitted the single conversation  at trial a single conversation that lasted less than one minutes in which neither party discussed any criminal activity and which was admitted during the course of a nine day trial in which hundreds of other exhibits were admitted and so as we detail in our brief the case for harmless error is clear combined with standing now i'm not suggesting that the court need resort to harmless error we think it's a good wiretap on the merits nevertheless if if the court were searching for a clear path to resolve the defendant's issue one that would be one way to to challenge the veracity of certain statements regarding tribe one of these in particular the defendant pointed to statements in the wiretap affidavit regarding suma anglo's use conversations about business but the difficulty for the defendant is that he cannot point to any false statements in that affidavit the affidavit correctly stated that business was an amount of marijuana and that statement was even misleading because as as agents when seche the lead agent testified during a frank's hearing in this matter he was never able to any alternative even if there were misrepresentations that's the drug why the the the wiretap affidavit would still be upheld because the balance of the material and included in the affidavit establish probable cause and those and those facts included the fact that there were intercepted conversations between the low z and zuma regarding the distribution of drugs now i appreciate that the find that disputes what quantities those involved were involved in those transactions but regardless of what quantity were involved we have money laundering and because there was also evidence as was brought up earlier from two confidential sources indicating that happy's pizza stores were being used to launder money and i was based on two confidential sources conversations with and therefore happy's pizza and also with a conversation with the store manager that was part of the evidence also there was additional evidence regarding our consumers conversations with other individuals not merely  of drug distribution beyond that there was the previously mentioned why are excused me the previously mentioned a trash poll from the happies pizza corporate office where it was discovered a list of contacts were maintained for each of the various stores and several of those contacts face but rather pointed to alleged misrepresentations us a drug quantity but here again there was no false statements as could provide the relief under franks we don't wear because the only statement that the defendant highlighted in his submission was the lead agent's reference to his belief that at one point our consumer was selling a half which he interpreted to mean a half pound of marijuana but that really set forth the agent's belief and the spite having the opportunity to do so at a hearing that was held during the district  agents knew now that was being used for smaller quantities not larger quantities he was asked about that in particular he was asked about a june seventeenth two thousand and ten interception that was monitored by a different agent of course june seventeenth is six days after june eleventh when the wiretap order was issued and so it's less probative in that respect but in any event the agent testified that although it appears from that particular line sheet that in that context it was knowing misrepresentation it would turn on a credibility determination on that that is the judge might have said yeah ok oppegard you're lying about that she might have but she did and i appreciate that is the difference between a she found to be truthful nevertheless the judge held this two and a half hour hearing during which she observed the agents responses to these questions about drug quantities and other matters and she ultimately found a bet she that he acted in good faith and so implicitly and she quit correct me if i'm wrong it looked like  she said i'm going to give an oral decision and i'll put something in writing later but i take it she never did except to finally issued just a brief order saying that for the reasons articulate at the prior hearing the motions are denied but it is true that there is no  but as i say that really shouldn't weigh on how this court reviews the lower court's decision because as i said there was this subsequent motion hearing where the court explained her reasons for the nine emotions and she referenced the fact that in denying that motion she was taking into account this frank's hearing that was held where she had the opportunity to to observe the credibility of the agent and this court of course should not discount those proceedings by the lower court briefly again on the warrant  the reference to a an arrest in two thousand and ten of one marc moca marco's who for drug crimes where it was learned that mark's brother jeffrey was helping his father invest money in a happy proceeds that's again another piece of information that's probably consider description of the items to be seized was sufficiently specific in light of the nature of the of the investigation and that was investigation wherein investigators need evidence of money laundering and so they need enough records that would allow them to do the tracing analysis that would that would be necessary for such a warren asked or or averred to the fact that you couldn't think of any records that might not be seized under this warrant well while there are some and generally those would be records that cannot reasonably be expected to show the flow of money in and out to the investors as well as the investors identity and whether or not they were linked to drug crimes those might include h r files personnel records at least those not tied to employee compensation or profits trade secrets after all and this is a this is a piece operation mr asper testified about other aspects of the business besides those dealing with franchising new stores in particular happy pizzas food which was an arm of the corporation that he used to sort of speculate on food prices and try to try to negotiate favorable supplier contracts that you could so that he could gain the cost savings from that or didn't mention anything about that no market research no negotiations that would be associated with that and so this was not an all records search just by a simple reading of it and finally again because mr moran brought up i would like to briefly comment on exhibit five don't you seven it is not the case that the introduction of this exhibit vastly expanded the theories of either side's case such that the trial court would have been compelled to grant a full day continuance of the proceedings the government always maintained that while we had certain corporate books to prove tax fraud for a certain numbers of store that the fraud pervaded more generally all the happy pizza stores and so that was not an expansion of the government's theory through the introduction of this exhibit in any good in any case the time that was available at trial was sufficient for the parties to for explore the significance and the import of the of this exhibit we provide a other franchise owners where did that come from that come off their computer that wasn't done by the government separately i mean without your understand the government made it up as a as a summary exit oh no no it was it was pretty taken from a why i disagree with the government regarding the issue of standing it's addressed in some detail in the reply brief the the the the thing that strikes me the entire premise of the of the application the title three application the entire premise of the rule forty one affidavit was that something was going on which the affiant knew clearly was not and that is wide scale drug trafficking by specifically soma and go low z it's just a fundamental untruth there was no way that the governor that the that the that this could not have been either not knowingly misrepresentation or knowing this representation or a statement made in reckless disregard of the truth to my friend brings up  a drug trade specific transaction which was the only contemporaneous account of a drug transaction in the ring the search warrant affidavit that took place on june sixteenth two thousand and ten that this is the this is the portion of the affidavit in which the case age of the case agent says the person who supervised the ongoing wiretap the case agent says we believe this is half a pound of marijuana it in in  agents were in possession of information which conclusively showed that we're talking about securing four or five ounces of marijuana for personal use for four or five hundred dollars apiece and in fact on june seventeenth the day after the the that these these statements were not misrepresented knowingly or records the misrepresentative finally as to exhibit five ninety seven if we had i suppose the question is what would we have done differently if we had gotten a little time to do it one of the things we might have been able to do is find the person who actually authored this document and there were there were significant differences about the accuracy and the meaning of some of the entries in the document our account never had a real chance to look at it we never got a chance to track down who may have written it and so the jury really never heard what it really meant and that's my time thank you for your attention will be submitted