government had nothing to charge anybody with but then we got this letter and apparently they have been charged with crimes and the other thing when i read the briefs i thought why are we entertaining an appeal when the case isn't action just a straightforward application of heche humphrey and i'd like circuit authority so for all kinds of reasons i don't understand how we can do anything ok in the first place not exactly yes maria is not charged with anything she was just the roommate and the original to give you some background on this issue the original complaint was file eighteen months after we filed our action on may twenty fifth two thousand and four and then as we were getting up towards the preliminary hearing the government convened a grand jury in may of two address that in just to say let me finish with telling you where we're out here the short answer to that is i submit no the heck the humphrey and the ninth circuit authority applies to  civil actions that are filed when there is a currently then pending criminal case and in fact the ninth circuit has extended the original supreme court decision by applying it to pending cases not cases in which a conviction has resulted are you trying to tell us that if you file it before your client is charged you defeat the whole principle you know what i'm saying is that the defendants should have set it up as an affirmative defense and then move to a page instead of doing that after the criminal case was filed they made a motion to consolidate the two cases which was great they made the motion on august thirt thousand and four about three months after the criminal case against carroll was file that motion was granted over my objection then we get around to two thousand and five and in march of two thousand and therefore we did have to raise it in this case so we the plaintiffs both of them have detrimentally relied upon the representations and the position taken by you've got to back up to something i don't think i understand it used to feel a did that whatever happened in one case what happened in the other the cases would stand or fall together we stipulated because only carol's interloc appeal on the motion to amend had been granted that whatever happened on that appeal for carol would apply equally to maria's case and that's contained in about ten months after the criminal complaint was filed so what's happening here is that is that the defendants is taking action and causing us to take action as if they're not going to a hex versus humphrey i could have filed separate appeals these are separate cases with separate case numbers i could have filed a separate appeal of the matter is today just as easily as one brief and i called up the court clerk to make sure i could file it is one brief and it wouldn't have affected maria's case one whit and so i'm saying that basically the government give me the defendants can set this up as an affirmative defense below and they can make allegations in connection with that pleading that that the that the criminal case of their the civil case we carol would be would affect their criminal case if they believe that that would be a tactical decision for them to make this case goes back down but to allow them to do of yes or no no no no the county fairs just the county and the individual investigators yes now tell me one more thing that i don't understand well it's a matter with issuing the search warrant or with the breck of it it looked like i read the  affidavit and it looked like they had a lot of evidence that these women were stealing from the charity and that they issued a search warrant so that they could find all the books and papers and evidences of expenditures that would tend to bear on whether that was true why is it effective ok carol according to the search warrant affidavit and it's the depositions carol handles the f f a the foster family agency part of it they certify foster families provide support to them make sure they're doing what they're supposed to be doing place kids whether she didn't have anything to do with the group home part of the  genesis the affine siegler has stated that her probable cause analysis pertains to the group homes not to the foster family agency  what they did here was they they were aware that genesis was involved in several businesses the group homes foster family agency medical and alcohol treatment and counseling and adoptions of all of those the only one that they were interested in investigating was the group home defiant knew that she didn't tell anybody that and she then proceeded to obtain a search warrant for everything going back to the inception of genesis which was one nine hundred eighty eight for all manner of documents they were just interested in the american express credit cards and they were just interested in credit cards from my clients they saw everybody's credit cards that they could possibly find i don't really understand the distinction you drew it it sounds like all three people are spending a whole lot more than their salaries or any possible salaries would explain and it looks as though a lot of money being looted from the charity and that went out well well i limited to one credit card or something like that ok so tender ten days before the warrants was applied for they talked to join anderson an auditor with the department of social services and he told them that you get the information that you have does not it does not establish a possibility of wrongdoing there it is my time's running out but there is a smoking gun in this case r fourteen thirty three exhibit five to my declaration and it's release of big handwritten notes of that january eighteenth two thousand and two meeting and in her hand written notes the memo that she made to herself she talks that they're going to get a search warrant to conduct an audit they want to get  remove the complete documents because the auditing process will be more difficult and time consuming if they don't they want without any time limit or reference to a person  crime or an event she lists the documents that they want that's shows up in the search warrant description then she says that review of personal credit card statements and personal bank accounts it is possible reimbursements were made to genesis of personal checks cut in salary or purchases made on personal cards for work related items that's what she was told in sacramento that doesn't show up in the search warrant affidavit and then she says it will take approximately four to six weeks to conduct an audit covering the past four years she knew that they will he wanted to do a lot an audit limited to a timeframe but nobody told the magistrate issuing this warrant and they went back from one nine hundred eighty eight all the way up to two thousand and two seizing every financial document from all of genesis businesses not just the ones that they were interested in and you saying that in the search warrant cow that if the officers have probable cause to believe that an entire business is permeated by fraud they are required to set that forth in the affidavit if they believe that the documents that they seek cannot be separated from the documents which are legitimate they are required to set that forth in the affidavit none of that is in the affidavit they did not follow this circuit's authority in that regard well you're using of the saying that somehow they should have segregated out part of genesis for the search warrant they knew that yes they knew that they were only interested in the group home documents carol operated the f a a and yet they're going into her office they had out they had a chart that was provided by jean of the of the office space who has offices were where they could they could have only gone after what they wanted to but they didn't well in mid december two thousand and one the f b i referred genesis chief operating officer and controller another person to the d a s office of dress possible wrongdoing at genesis yes where were vikki and you know working for genesis yes gina vaknin you know had been there for three weeks and torn i had been there for about three and a half months and they came in and they said there's explained in the same interview by tourny as he saying that they went to the end of the year to allocate their expenses and that elaine carroll sr was doing that as he was speaking  a james brown pointed out that until the expenses are allocated it's premature to say that anybody has misappropriated anything well that's true but this is  page twenty of his transcription that elaine was using the american express statements and was doing the allocation as she spoke as she was speaking to the f appeal and i'd easily go beyond my ten minutes if i try to cover them all i think i'd like to get some of the highlights and maybe address some of your honor's questions with regards to the procedural issues  had beginning and pretty much know from what we ask your adversary what's on our minds thank you so there's always it's always helpful to help us on a tour with with regards to the heavy humphry issue the it's not something that you assert is an affirmative defense because a positive action doesn't even a crew until the conclusion of the criminal case so i think that's a red herring the issue with that came to our attention when a motion to suppress the evidence in the criminal case was ruled on in this proof present county superior court several weeks ago that's what first raised the the search warrant issue to our attention and that's the the letter that my office  sent to the ninth circuit just to bring that change of circumstance to the court's attention so we didn't sandbag anybody by sitting on it then you didn't know about the criminal case all we knew about the criminal case yes yes you this is the motion to amend to add the two different defendants that doesn't deal with the search warrant issues that that were here that we're dealing with this appeal here with regards to the search warrant i think a review of the search warrant affidavit i think it's a twenty eight page affidavit establishes of a very extensive investigation that was done prior to bring in this warrant to a judge for his signature they had to confidential informants confidential at that time now we know that they were the chief operations officer officer of financial officer who initially went to the f b i that then was referred to the fresno county d a s office who not only provided background information but they provided a ton of documentation to back up what they were saying as well based on that information that this kearney's office went and obtained bank records and american express records through two different search warrant they went to sacramento and met with the department of social services to find out what type of documentation they needed what type what type of documentation they need to look for with the search warrant this is a very complex investigation they weren't just looking at one issue they were looking at several areas of criminal activity the the spending nonprofit corporation money that's used for children and group homes on personal items double billing in the county of president all for not holding beds open that they should have held open for these children not returning over payments made by the county of fresno to them and double b in the foster family portion of it also so it was an extensive investigation that went on before this and the search warrant was sought here  terms of i think a lot of the time in the appellant's brief they lose sight of the forest for the trees and they focus on what they did not do do did not do versus what they did do in terms of their investigation  for example they say they should they should have gone and talked to the county and in charge a person in charge of the crisis bed contracts well actually a supervisor had done that but that doesn't take away from the probable cause that they had in the ward does nothing to take away from that it's almost as if they're they're trying to show that that the investigators had to prove that these people had committed crimes and we're talking about a much lower standard here we're just talking about probable cause not to have proof beyond a reasonable doubt as to whether or not they had had committed these crimes through other issues that are or are raised in the warrant are the the specificity in terms of the items to be seized i think there's a about an eight page list of specifically described items that they are searching for and that list was provided by the department of social services these are the items you need to look for in doing this investigation and several the categories are broken down into subcategories but it's a very specific very defined list in terms of the timeframe there were time frames mentioned in the affidavit again this is this is a complex white collar investigation involving transactions occurring over a period of years the they basically based on the totality of circumstances they had they did their best with the time frame and they put that in the affidavit but again it's very complex investigation and they pretty much did their best with what they had and that's what law requires that for you to run out of time let's talk about the interlocutory appeal it seems that there was a mistake the district court made a mistake the suit was filed in december of two thousand and two and in january two thousand and three the statue of limitations with distended to two years that happened