morning everyone good morning everyone before we here begin our oral arguments this morning judge fernandez and i would like to thank you know it's judge roger roman who's visiting with us from the th circuit his chambers are also falls south dakota so we're really pleased that you could be here with us for a few days they could get a factory ok our st case up for oral argument this morning is the united states versus pedro morning your honor so you are sending me rosco may it please the court counsel so this case comes before the court on a conditional plea that was entered by mr cross go reserving the right to appeal his initial motion to suppress evidence and the right to appeal his motion for reconsideration and and request for frank's hearing it comes to the court in kind of a unique situation and the unique  situation is this st of all on the initial motion to suppress is not an issue in this case because it would be conceded that the initial motion to suppress regardless of the franks issues was probably a correct decision but now we have the franks issues we have to to decide but it comes before this court with an incomplete record and the reason it comes before this court with an incomplete record is because franks versus delaware requires that there be a a a an initial substantial showing of an intentional misstatement or reckless admissions of fact in order to justify frank's evidence rehearing there was never a frank seven entry here in this case in fact what happened was mr cross go i won't go through the whole history but had an initial counsel that filed for the motion for reconsideration frank syrian raised three issues three issues are in the brief one deals with the lack of disclosure of complete criminal history the fact that the codefendant said that drugs were going to be delivered at pelican truck point and then the rd was the phone call on february th what wasn't in the record before the district court was the recorded interview by the confidential informant in this case and mr cross to raise that issue before the district court in a motion to replace his nd counsel who is refusing to file a supplement or a nd franks motion based on that based on that interview what  this is this is new to me i thought the whole i thought the whole you or i thought that the challenge here was the fact that they're on the motion for reconsideration it was brought out that  the government had not turned over the prior criminal record of the confidential source that was the st issue with the initial lawyer yes with the initial defense or trial coun and i thought that's the basis for your challenge to the district court's motion denying the motion for reconsideration no the basis here is is is that the so i say this is a unique posture the rule denied right there were three grounds that were denied yes we just you just went through that and then there was an ex parte hearing in which mr cross go was attempting to remove the nd trial counsel because she did not she felt differently about filing a motion to supplement the record and ask for another franks hearing based on the recorded statement by the confidential informant and in that party hearing the trial counsel's sa so that the lawyer on appeal in that court on appeal has the confidential informant statement i'm going to place it in the record in the court granted permission for the trial lawyer to put that written transcript in the record and the written transcript is actually the primary evidence conditional plea to an issue that an incomplete record is really not ok now if i were to go back again to look at the blue brief this is all going to be laid out in the blue grass yes yeah i'm not saying that the initial i think the initial motion for frank hearing albeit had some good arguments the district court may not have committed air but when you add the fact that the confidential informants transcript added to those three issues i mean the truth of the confidential inform literally is denying knowledge of any illegal conduct albeit sort of intimating to open but never saying that she was a accomplice in this in this act so her reliability and credibility when you add that to her five felony forgery convictions and her five felony theft that weren't outlined in detail in the affidavit he just don't have probable cause if the district court who should be the final fact finder not this court this court is not that's that's sort of my dilemma in this case is the posture of the case with the transcript having been admitted before this court for appeal and for me to review on appeal which is what the idea was in district court literally places this court in a fact finder situation where the district court should be the fact finder the district court should be the fact finder to determine if the transcript indeed justifies the franks hearing and  the district court should be the fact finder to determine whether or not the government's right in stating that mr cross go had this transcript well before he claimed right now the posture of this case is forcing this court driven snow and neither is he peer of the arse he is she pure of the driven snow but he she also didn't admit to being an accomplice in a crime which is what adds to credibility she is he  take at least to inform the magistrate that this informant was not completely candid and outlining his her involvement in the in the trip from her midst in oregon to montana whether she had knowledge as to the methamphetamine going to mr carranza go the informant answered i knew he wanted to bring pedro something i did not know that he had it to bring though i did not know that this informant appears to want to try to escape responsibility yet not admit responsibility all throughout this transcript that's owned the methamphetamine said it was going to the pelican truck stop so i believe the posture of this case because this is supposed to be a conditional plea where a dispositive motion to suppress comes to this court shifting argument now that it's that the defendant had entered this conditional plea without a complete record you know his his argument is that there was this statement from the confidential source and he's now arguing that it wasn't turned over a lot there's lots of evidence of cute including audios a witness statements and she said that she's reviewed some of the statements during the hearing again she said she spent time at the u s attorney's office reviewing the statements and then really then you  in particular that she listened to the transcript or the tape of the she doesn't specifically say that she listened to the c s is statement but that the the witness statement there's there's i mean that's that's our witness in this case is th woman's point the question here right as i understood it was whether or not the agent was deliberately deceptive and before we get to that i just want to say that the even if you take away some of these claims in the  are found in the vehicle there's three occupants one of the occupants besides cooperate becomes an informant and provides information to the agents is able to says that and martin morass she has peter krause those phone number now the agents had been investigating pedro for three years because there is a drug dealer out of idaho that have been going to his house during that investigation that they knew were to lived there all determine what page was phone number was and the phone number that they had for pedro is the same phone number that the c s provided to them and then i think the you know this is not an anonymous tipster this is a c s u who knows about this drug trafficking organization for the past four years the statement as transcribed as one hundred and thirty pages certainly as judge woman was saying you get here and the agents listen to that call at that point there is certainly enough to get probably cause and that's the district court made that finding in the initial order the court said that the c s has firsthand knowledge being distributed during his previous trips but in the c s a statement the c s specifically says that in the trip and christmas of two thousand and fifteen she knew that they're transporting a pound and a half to two pounds of methamphetamine  and we certainly you know this was what was he doing there i think we're not doing so he didn't put in the specific dates or the amount so it was sort of a terse summary conviction that this court found that that ten year old forge a conviction was stale and in that case because there was other information that corroborated the c s a statement that this court did not believe that that was a a omission or a missed you know or material statement so so i think i think that we're in the same posture here these these are if you look at the criminal history pork these are felonies from charges that's correct who in your view is this is is it your view that this case is clearly distinguished from perkins in that there's no allegation of clear intentional powder and there's no it there's no evidence to show that there was any clear mis misleading or false statements by the agents when they when they put together this affidavit are to think of the old cases this goes back to when you were not even in grade school and aguilar smelly cases st say i don't know but then she says i know that as much as he could get i know that santana wanted to restart the kilo thing because that's how it seemed to make the most money and then the agent says so to bring him the dope as much dope as he could get math and then the c s says the plan was for him he sounded like he wanted to stay and he wanted to hold on to it and he wasn't going to give it to him all at once the informant then says so santana was going to hang in billings and just kind of give it to him a little bit of a time at a time and the in c s says i believe it was the other guy that came with us he was going to stay around and hang out and then the agents it's a ten cent ten it's going to give it going to have garcia hang out informant explain that when they were in her car missed an organ she was there with another of it individual they put the speaker boxes in the car and then she says that when we got would we would get go to the house santana would get in and talk to him and they would look at the top and pager would say try it and see if you like it and then depending how good he would start to shell out the money so she was telling them what was going to happen once they got there all right thank  you had a minute rebuttal again your honor i just want to reiterate the district court has not had a chance to review this affidavit and determine whether or not st of all substantial showing could be made number two whether they're not the position of the government is accurate and or the position of mr pedro we're again we're here in a very unique situation where that the record is not complete that's why i'm asking for this case to be remanded to the district court because what additional evidence would be submitted well the evidence that the second trial counsel's didn't put before the district court and yet convince mr cross go to take a conditional plea based on an incomplete record but you're talking about the transcript of the interview i am but that we're talking about yes yes that was not presented to the district court for the court to decide to make findings of fact what the government's asking this court to do is to be the fact finder instead of upholding that the district court's determination based on a complete record that you had an i see claim as well yes for that lead to this say what related yes for the yes for the the failure to request a frank's hearing without a complete record and you know i just wanted to reiterate i do think that it wouldn't have been that difficult for the agent to list five felony forgery can get convictions and five theft convictions that are in the state of washington crimes of dishonesty coupled with the fact that she wasn't admitting to involvement in any crimes in this case other than that sh district court and then conclude it wouldn't make any difference for we make that value judgment up there on the basis of the well i guess that's why i say this is a unique posture i guess this this court could but normally the case comes before the court with a record that the findings by the district court to determine whether does the district court was right or wrong in this case the district court was deprived of that opportunity thank you thank you counsel a matter submitted at this time