enabling statute twenty five eighteen one day twenty five eighteen for d and twenty five eighteen ten to mean what they say or whether they can be completely disregarded the context of that is that wiretapping is an extraordinary invasion of privacy and that's not only named targets and that's but whether it should be permitted at all in anything other than national security situations you know how much decided to permit this kind of surveillance but only under strict conditions and all of them were specifically laid out in the statute we would have to argue anything else yes or if the authorization had not been received and proved to the court prior to the application which is a separate argument that we're making with respect to i'm sorry  in the application and findings in the order were not there is merely a clerical error is is clearly wrong i don't think that is even a finding of fact i think in fact that it's really a decision of law because if you take a look at the statute itself they are in plain language required under twenty five eighteen one eg that section specifically requires that the application include the identity of a law enforcement officer making the application and shall specify well the statutory scheme requires not that there simply be a letter of authorization by an appropriate level person but that that person be identified in the application and the order clearly an error and we've made the specific factual arguments in our briefing here i think that he was clearly wrong characterizing the failure of the application and order to even refer in any way of this case i think your honor established that even judge prior never knew who the politically responsible person within the department of justice who authorised the applications was and i say that because in the required annual reports to the administrative office of the courts of briar who signed these orders reported that the person who authorized the applications was a us a just a whole who was of course not a person in the o j at all and not a person who is designated or permitted to make these authorizations that's the problem that we've got here is that if the court is not required to do what raina says the court has to do which is not take law enforcement officials will apply for this kind of because i think that the government did not make it in their brief and that is the government's argument that the first two applications were in fact improved and does it by a designated d o j official is is the answer to the problem here i think it's not that's off the mark because with that's off the mark with respect to our facial insufficiency argument because we can see there were letters in the file of authorization from the deputy assistant attorney general with respect to the august and september wiretaps the question here is not suppression under twenty five eighteen ten a one which is the section that permits suppression when a communication was unlawfully intercepted because of a twenty five sixteen one failure to secure authorization we are making that argument with respect to the september and october there is no identification of a specific person correct or incorrect in the september and october application orders in the office application there is no all what you want to rule that you have to put in the application itself and that's really the end of the story is not there government loses well i don't think it's what i want i think it's what the language of the statute requires and i plain reading of it we have two sections that require that that information be in the application and in the order and we have your donald telling us why which is that the prior authorization by a political responsible d o j official is one of the off a draft and the second one after the authorization was received by the a was a was to accompany the usa back to get a signature it seems problem to me under the facts we have here that what happened this is a real problem with that wiretap is the eight thirty signature and if that's the nature happened before the judge had received proof of deal she approval then the judge's order is invalid and everything assume that that i would concede that that may be a problem for us with respect to anything after ten o'clock is that there's the related issue that if we are correct and the august application and order were bad then the various i disagree i think that there's very good evidence that he didn't mean the wrong person in the report as the authorizing officer so he didn't know it was that's the problem is because it was let and that's the whole problem here with the  we were simply interested in certain factual questions did or did not this occur for example with the september twenty fifth order with the judge signed the order and then wrote in hand the notation three pm we know right thing down judge johnson is finding with all due respect was clearly wrong he the judge what he did is he invalidated a handwritten note tension of the superior court of the district court judge without any direct evidence that that was an error as a matter of fact we argued in detail that it was probably the most inconclusive circumstantial evidence that he used to make that finding he didn't give us an opportunity i asked the judge the question i want to ask your honor thing is going to take a look and see if if we are able to read my recollection is that was the answer pretty illegible on most of these orders but we'll take a look as we're speaking to see if it's the e while he's looking at that if i could i would like to follow up with the related issue of the court i believe some of the stamps that are used the electronic ones put the date and time this appears to be one of the hand stamps from which one might infer there was a court room deputy because usually when i go file at the clerk's office they use one of those time stamps  that is that for the court to accept the government's position that they didn't know which you know was and the related question that they didn't know that johnny barnes was was on the earlier  lots of chinos who are major drug dealers who were the subject of wiretaps in the east bay by the same law enforcement officers that's what's so surprising here because this is not like we're talking about each you know in a world full of chinos we're talking about the only other she know that i'm aware and there aren't that many of these large wiretap cases and i've been aware of most of them in this timeframe and that's why we were able to discern almost right away who chino was it so happened that myself or mr finnegan were involved in that same case with another codefendant just like those law enforcement officers were and it struck us right away we know who they're talking about here and all we have to do to verify that was go look at their head registers a trace evidence they're told records and the actual calls the interest after that have johnny barnes place clearly identifiable on the intercepted calls there's no great leap of faith and no tremendous amount of investigation that's the the other thing that i didn't want to mention was our argument that judge johnson didn't give us an opportunity to have a hearing or at least a full and fair hearing and i think that's really important with respect to the facial insufficiency arguments and  the two arguments that the september and october wiretaps were not legal because the judge didn't in fact receive notification and proof of the o j authorization before he signed the orders the  hearing and could make a decision based on that as to what was material evidence so you need this initial determination that only agent james could testify denied our request for a subpoena or a deposition and the reason we asked for a deposition was just sort of a matter of comedy or respect to judge prior if in any way judge prior might feel that it was not appropriate for him to be called as a witness in another judge's court we had we certainly wanted to be  played by the identification requirements of the statute and this court's one noted the decision in chavez and the language by the supreme court chavez and specifically noted that the identification requirements in the wiretap statute do not play person's identity on the face of the order makes it insufficient with respect to the statute however this court noted the inquiry doesn't stop there you then do the second part of the inquiry which is ok there's been a violation of part of the statute a central role quite frankly it doesn't even have a function within congress is an intent to limit wiretaps what chavez noted was what it appears to do is enable judges to do exactly what counsel was pointing out which is complete the reporting requirement to the administrative office of the courts when judges are required to submit those reports to know when wiretaps have in fact taken place what is most important in safeguarding against unwarranted wire stapled in one stapled many many times the files in complete disarray but it does not have a document stamp which indicates it was not filed separately that it was attached to something when it was filed in the court file in front of judge johnson that was litigated for months and months in front of judge johnson and now the practice with respect to these is very different than it was the individual's name is placed in the application the of the  happened if judge to give us his evidence on this point maybe maybe not i mean again these motions were filed two years later and as you can see from a usa calls declaration he was very careful he didn't want to state something that he himself could not state it would have been easier hat you stated i remember that day i remember i got it i remember i got it at this time and that would have been easy but he was honest about it been two years later and it was conjecture according to judge johnson on the defendant's part to think that greenbrier and two years after the fact to testify about you know who signed the letter and and what time was it that he noted on the order was that the would add little to what was already in the record that i was going to make good terminations before the hearing he did i don't think he made that determination before the hearing we had the hearing we had the arguments and the agent testified and it wasn't till after that he not at that point and not the request to depose the tchotchke and it wasn't until he judge johnson issued his written order in february several months later that in that order he actually denied the request and found that he didn't need the testimony it hadn't been that the judge prior had been provided with courtesy copies of all the documents in advance so other than the britten authorization obviously because that had not come here at all as for then you had the affidavits the applications in advance as i interception did not begin until september first then the second application orders start interception of wire communications over telephones and that because it was an initial application order it wasn't are i don't think that can be said with respect to the world body because at the same time something that has not been challenged before this court and i mentioned it very briefly in the in the brief is that there was also an application in order granted to install a video particularly if you put in a name of an official who is not even authorized to authorize a wiretap so you have to look beyond that behind it to see whether or not the precondition really one of the most fundamental requirements of title three is whether or it did your honor it relied on swann and the other decisions that i've mentioned both before this court this court relied on and also that judge johnson mentioned in his orders as well so i see i'm way over my time i haven't addressed the other issues changed in our office we now have a shared directory which contains the proper formatting that should be used in these cases to make sure that these sorts of statutory requirements are complied with it's very good something you know you get all these manuals and just very briefly unless there are more questions on that issue i'd like to address just very quickly i know i'm over my time the issue of chino and the prior applications and whether or not she should have been named in this particular case or not and how many investigation and there were over two hundred fifty chinos in northern california the names alone covered twenty two pages the information relating to those chinos covered seven hundred fifty pages and judge jensen specifically noted in his order having reviewed the data provided by the government he was even more assured that the steps the government took to investigate prior applications was reasonable in this particular case and that's a quote out of his order he himself having first i want to point out that judge jensen did before the hearing order only that agent james was to be a witness and since i believe that was disputed that's found in the excerpts of the record at page seven fifty the judge's order of december first two thousand specifically finds an evidentiary hearing would be helpful to the disposition of the motion hereby steps a hearing for december twenty eighth two thousand and ten o'clock the witness to be examined at th specifically for this situation i think the government's argument that they've already learned their lesson and now they're doing it all differently it's completely unpersuasive does that work both ways that a criminal defendant who violates the law and goes through a criminal proceeding get to say to the judge look i've gone through this whole proceeding i've had to come to court i've learned my lesson you shouldn't punish now that's not the way the law works it's not the way the law works with respect to criminal penalties when you commit a crime it's not the way the law works with respect you have approval instead of get your approval given the application come back the next day these wiretaps last for three months you never get the critical smoking gun on the first day what is the big rush and it creates a situation that's  and that's when he said no you can't delegate that responsibility in a very important investigation like this this kind of an intrusive surveillance to the law enforcement agents who are requesting the order the judge got in the way and the way that that their procedure was standard practice at the time and cost of the same thing he was there today answer any question i'm sorry i didn't understand there as well answer questions the government's argument that the september and october borders identify the authorizing official they don't really even there it was incredibly sloppy what those orders say is that law enforcement officers are authorized to intercept the wire electronic communications as authorized by the assistant attorney general in charge of the criminal division pursuant to the power vested in the attorney general by section twenty five sixteen section twenty five sixteen eleven the at all doesn't exist and the language here doesn't say that the application was authorized the language here says that the wiretap the interest that was authorized which was decided by judge browning back in one nine hundred seventy six when michael well that's one of those cases where i talked before about the government running two separate questions together swan was one of those cases one of these mistaken identity cases where you're talking about whether or not the wiretap was illegal because the person wasn't identified here we're not talking ultimately about whether they're what we're authorization letters from d o j we   with respect to the argument that was made when you're honest with questioning the government about why wasn't why shouldn't judge crier have been called as a witness the government made the argument oh well it was all two years ago he probably would never recall well judge jensen decided the matter based on cole's declaration which was two years old so if he's going to rely on and make the actual determinations on circumstantial evidence which is two years old why not get some direct evidence from the judge who was there which is also two disputed factual issue i believe that was clearly the appropriate thing to do in terms of responding to a question that was asked earlier regarding the timing of the and the only other thing i wanted to mention was that the purpose for identifying the responsible individual is not and this is what is discussed both in the congressional record and in the cases tear down on the following cases not only