christine bunch i just want to address very briefly what this what this evidence is so all william canard was a forensic chemist for the a t f he examined search evidence from the fire that had occurred in this bunch of trailers he produced two draft reports which found there were no heavy petroleum distillates into crucial areas of that  that prefabricated home he then produced the final report which found no work h p d in those two crucial areas of miss bunches whole the draft reports were never produced to the prosecutor no question about that we do claim that they were they were produced to the fire marshals but that's an issue for another day but with respect to canar he was the crucial evidence in this case without him there was essentially nothing there was zero motive for this crime why would a loving mother kill her three year old son no boat if was ever advanced as to why this would happen the other evidence against him this bunch was the fire marshal you know if that really here in a legal issue some supper had zana get right to the legal issue the allegations are that he conspired with the two statutory language the exception to the exception if you will yes twenty eight sixty age doesn't just say a lot foresman officer it says an investigative or law enforcement officer and i take it enforcement that they can go execute searches that they handle on site evidence etc so maybe you want to address press the government's reasons ok thank you so precisely and precisely that is our argument in fact the statute someone would meet those definitions and that is to execute searches to seize evidence or to make arrests there was a girl and her shipping are some really important statutory language which is that the definition is any officer of the united states who is empowered by law correct to execute searches to seize evidence or to make arrests ok not that they just did it in this particular case all that's that's what the millbrook case clarif of agree it's a matter of legal authority it's legal the question of what was factually going on in the case right now agrees so because of that and the united states agrees with us on this position what you have to do is look at the authorized duties of the no you have to look at the statute first well they lost that authorized they and the howard by law there must be someone you know our regulatory authority not just a matter of job to look through legal authority ok not job description functions of the office cetera it depends on the ok so he's a legal grant of authority so here we have a lot of enforcement judge i don't think there are i don't know that there is a statute that says precisely that but then we would be in the situation where regulation says that that he has that legal authority that this has never been raced this was not raised by the united states the so the millbrook language is what we need to deal with the meaning of the law must be discerned from the language of the statute you know and who who is actually of course they're talking about a law enforcement officer but the principle of going back to the statute surely is the same but you know we need to figure out how do we how do you answer this question and powered by law ok well i think first of all analyzing that that's the sole purpose of his job that's what he does he assist in the investigation of crime right and clearly acting within the scope of his employment but that is not decisive of the question what is decisive one is whether he is an officer of the united states and i haven't heard that addressed yet who is empowered by law to execute searches or seize evidence i don't think we have the arrest component at issue here we don't so he has to be you have to give us some source of legal authority start some statute regulation and i you know what it may be of some use and sparingly both parties have failed to to really focus on this to get supplemental briefs on this question i think i would ask you and tell us what law and then number three we each of those three different possibilities one two or three probably at least not the third one which what can he do what you where where is this come from it could be you know the organizing law that creates you know and has moved a t f over to the department of homeland security and then sent hence to the justice department could be could be a lot of things but know i'm not going to tell you how to retreat but it but there needs to be something sure ok and just but with respect to the officer issue because i did address that it is addressed to pages twenty one to twenty three in our opening brief good morning my name is should lease words and i represent the united states so his words is it possible that the united states has waived its our its potential argument about sovereign immunity by failing to focus on the millbrook factors no your honor in the district court briefing and the appellate brief of the united states walked through the history of legal authority given to a employees by congress our position is that if you are so focused thing on law enforcement you your brief is is devoid of any independent discussion of invest agents and unless you think the word investigatory is just surplus in the statute we need to see a difference so you say for example a t f forensic chemists don't go over to the federal law enforcement training center fine so they're not law enforcement officers with the statute gives you two options and i didn't see any discussion in your brief about why they were not investigatory agent the reason is your honor is there is a further definition of investigative or law enforcement officer in the statute and that's where you have to look and that is a person who is empowered by law to execute searches make arrests i understand as you know it's just been talking about for the last five minutes yes and so it was the question of whether your brief didn't when and why these a t f agent fail that you say he's not a special agent ok fine he's not a special agent just because agents can carry firearms serve warrants subpoenas make arrests doesn't mean that there isn't anybody else in all of a t f who can do those things you need to say why an investigative person isn't somebody covered by the statute the reason is is because mr canard was not empowered by law by congress by regulation or by the a t f to do any of those things he simply was and and the reason the united states had the burden to establish that and that's why we put on his job description but you just have that in tolling deposition you say chemists are not is page twenty one are not authorized to serve or execute warrants served subpoenas make arrests or carry firearms none of which are of interest here which are duty separately delegated by congress and a t f to special agents chemists executing searches let's focus on that sure they are nasa kuning could mean carry out the search which might mean this is relevant evidence that's not relevant evidence get a sample of those don't get a sample of that so within a t f congress has only delegated that power to expect what are now known as special agents back in one thousand nine hundred five they were internal revenue in force and officers there's a specific statute it was twenty six u s c seventy six oh wait it was amended under the homeland security act so now it's eighteen u s c thirty fifty one those powers that empowered by law language is significant as the supreme court noted in millbrook who is the these are broad powers who has congress given those powers to within the law enforcement agencies so you don't think there's any difference between an investigative agent and a law enforcement agent no there could so there can of course be investigative agents or officers who have been given these powers by either agency and you see that you know you see that in other cases where we're certainly not arguing that someone has to be called a special agent in order to fall within the proviso for example v o p correctional officers are allowed to make arrests so they're not what we think of as typical special agents or law enforcement officers but they fall within the proviso because the agency has actually given them that power in this case neither congress nor the agency has ever given the power to a chemists to do these three things they don't have to do all three they just have to correct what to do any of any of these three things the agency has the authority to delegate that power has the statutory authority to tell it so i believe if you if you look at  eighteen us c thirty fifty why and it grants the authority to a t f to give these powers to special agents well it goes beyond that as well as any other investigator or officer charged by the attorney general with the duty of enforcing yes yes so it appears on the face of thirty fifty one a that the attorney general has the authority to delegate yes other officers beyond special agents yes are to confer this legal authority but that is what so and that is why in this case we felt compelled to produce the position description and also we do have deposition testimony as to the actual powers job duties and responsibilities that an a t f chemist has well is a description enough to do that usually if if some other government employees being deputized with law enforcement duties like the power to arrest or caesar search there's more to it than just the job description because they've got to take the oath and all of that stuff yes and i would suggest the  there is no evidence in this case that mr canard has these powers because he didn't have them and so i would suggest the fact that he's not an eighteen eleven law enforcement agent he's not called any of these things performing his job duties by providing technical assistance to the internet somehow is different from executing search warrant yes your honor very much so and i'd like to give you a legal and factual answer to that issue no court has addressed this question what is to execute a search under the proviso i think the reason is well one court called it a thorny issue and didn't do it what they were actually doing not the activity they were engaged in but what were they allowed to do so the question here is was mr canard empowered by law to execute a search what is execute a search i would say that you look to first you can look to the statutory authority given to the united states of america and its and its federal officers to execute searches and if you read that statutory authority eighteen u s c thirty one zero two at all it talks about you know how do you get a warrant who is allowed to go to the court and ask for one to conduct a search to execute a search that power is given to a federal law enforcement officer which is defined as a government agent who is within the category of officers authorized by the attorney general to request a search warrant you go again in our case  criminal rule forty one well there isn't anything in thirty one no two other than a reference to forty one oh sorry i think i jumped ahead to forty one b who has the authority to to obtain a warrant and execute  it and so the criminal rule forty one also makes clear that at all steps of the process the person obtaining the warrant actually going in executing the search warrant has to be empowered by law to do those things mr canard never had those powers i would also suggest because i started sort of digging around in fourth amendment law there's an interesting case from this circuit united states versus singer from hundred ninety one and it's a straight motion to suppress there was a no knock entry and the courts analyzing whether that was reasonable under the fourth amendment and the court says it is generally left to the discretion of the executing officers to determine how to proceed and that they may they have discretion to make certain decisions in executing a search warrant so if we apply that to this case there is the person with the authority to obtain a search warrant and actually execute it he may have a whole team of people behind him helping out providing technical assistance he or she may see something at the scene pursuant to that search warrant that is evidence of a crime and then send it back to a lab to be analyzed by someone else they're providing technical assistance are there here actually searching whatever it is they've got seized  so just to wrap up my first point is they are not the person executing search they don't have that power and then finally your honor i would say i mean we do have actual deposition testimony in this case about the job duties and responsibilities of the tempest and when asked whether she was conducting searches dolan she did not adopt that terminology i understand as a broad sense if you're looking at something to see is there the presence or absence of accelerants that you could be searching for that thing but the terminology that's used for chemists and that she herself when describing what her job is is to analyze and examine and then report back what is in there if conversed fully when a federal law enforcement officer goes into court and ask for a search warrant he or she already has an inclination they have to establish probable cause  do supplemental briefings but the essential position here is the a t f and there have been the statutes cited in both our brief and the united states brief is authorized to give no criminal and to employ persons to assist in those investigations for she went to that authority mr canard was employed because she went to that authority mr canard had certain job descriptions but she went to those job descriptions he was instructed to search evidence in the field sees evidence in the field and search evidence in the lab and so as a general rule it is is there a statute that says you'll you'll tell us what you fine thank you thank you very much the case will be taken under