my name is david bell and i represent the appellant in this matter melvin beasley chief judge batchelor who like to reserve three minutes for a bottle thank you this is a case regarding an indictment for drug sales that occurred in the western district of tennessee melvin beazley was convicted after a suppression hearing and a trial and sentenced to three hundred sixty months in prison and in this case this court should find that the search warrant that was issued was not sufficient to support probable cause and violated beasley's for this court should also find that the government's witness agent joe ho testified about crack cocaine being absorbed through the skin was not qualified as a scientific or medical expert and the c admission of this testimony was improper this court should also find that the supervised release condition imposed that mr beasley undergo drug treatment was unwarranted improper and that under a elaine this court should require the government to prove beasley's prior conviction now and that last issue i know this court has considered the issue but we are preserving that for appeal because there are several petitions that have been filed up to the supreme court on the issue and we anticipate that the court may consider that here in the near future i will reserve most of my argument here today as to the first two issues regarding the search warrant and the witness testimony this was a case where the search warrant that was issued by the judge in this matter the magistrate judge was issued when the agent in the matter agent taylor set forth a affidavit that by his own admission was full mostly of boilerplate plate language and language that was the bare minimum in order to amount to what he considered probable cause however when mr beasley filed a motion to suppress in a suppression hearing he had the benefit of some of the discovery in the case obviously and a prior supervised release violation hearing that he received a transcript of as jinx material in the matter and in those transcripts as well as in the affidavit the agent taylor stated that the one incident that he talked about in the search warrant affidavit the one controlled drug by first of all it was a there wasn't any information about the confidential informant or the reliability what it was really based upon was the fact that there had been one prior controlled by for this by this confidential informant a confidential source through mr beasley however in that and and what that meant if i can make sure is that there had to be some sort of other information that supported probable cause some sort of other in dish of reliability and what the government relied upon and what agent taylor a lot upon was his information about that part controlled by the information contained in the affidavit for the search warrant stated that mr that the confidential source had been monitored that he had been electronically monitored during the control box that nine grams was recovered during this one controlled by and that the agent had equipped him with an audio recording device it was very there wasn't any information about the locations volved either of the first meeting to give this controversial source the money or of where melvin beasley's residence was actually located other than what was sought to be searched or any more information about where the actual meeting afterwards took place there wasn't any allegation that mr confidential source was searched before and after this actual interaction with the agent instead and what the magistrate court and the circuit the district court relied upon in upholding the search warrant was this idea that the actual controlled purchase was monitored what happened was that at trial when mr beazley finally went to trial and after the motion to suppress was denied is that agent taylor got up to testify further and what we found out were a number of things we found out that the audio recording or the audio monitoring that was happening was happening through a cell phone but agent taylor admitted that the cell phone monitoring was really more for the purposes of making sure that mr that the confidential source didn't get in trouble that is he would be able to hear him yelling or screaming if somehow by went bad or something like that it still wasn't monitoring what it was a type of monitoring but the problem and that that very vague statement monitoring was relied upon by the magistrate court by the district court and yet it wasn't the type of that the agent initially said it was remember the testimony that if you were asked at the suppression hearing if you wanted to frank's hearing and you said no well your honor that information not come to light until the trial so there must have been some reason that the magistrate judge asking if you wanted  frank's or hearing well that was because the original suppression motion that was filed basically said that things did not happen the way that the agent alleged that it happened was very general but there wasn't you had said yes i want to frank hearing then all of this would have come out but in order to have a frank's hearing there has to be sufficient evidence to rely upon or else you're going before the judge without a good faith basis at that point there the evidence would have been presented was that the testimony from the supervised release violation hearing the supervisor lease violation hearing mr beasley case in which the agent said that all three of these were monitored the and and there wasn't really any other information we didn't know that the button can on that third party as i remember this affidavit didn't say anything about the prior to purchases and we have to look at the four corners of the affidavit there wasn't any information that that button cam had failed during this third one so that monitoring didn't occur  district court relies upon that recording and that's what they state in their rulings then there has to be something more in order for it to mount probable cause especially when the confidential source is not revealed and when this other information is not revealed that's one of the problem here and we run into this problem because the agent decided just not to include the agent could have included information about the other two binds they could have included information like locations of dates they could have gotten the weight right then even at the white right in the affidavit white did much difference to well it's just one more thing that the agent got wrong and why what was the agent doing that caused him to point out that the government talked about in its briefs and we and we discussed as well this was a sort of strange situation where at the trial the judge allowed the jury to ask questions of the witness  but it's a it's an interesting situation here's what occurred the jury had a question regarding the that third incident because what happened during that was that mr beasley noticed the button again and said what is that a camera what is that and after that happened according to the confidential source he sort of took off use the words freaked out and split ok and we left  and the jury asked so did you hear when he asked about the button and an agent taylor admitted that he did not recall hearing that that it was only after mr after the confidential source used a recording device so some recording devices don't work the whole measured oh you're right but he filed that affidavit after the bye had occurred he could have detail that in fact he could have detailed the first two buys as he had wanted to where apparently things worked better he could have detailed many things here and the problem is is the age of taylor knew the button camera device didn't work he knew he wasn't recording any phone conversation and he knew he had not heard that interaction regarding the button camera on that third incident so when he found this affidavit and said that it was being monitored and that it was being that there was a recording device attached he was recklessly misleading the court he was recklessly he's being reckless with the truth that's why this is a violation of the fourth amendment that's why mr beazley has rights were violated here and i want to make sure that the court understands what would happen if the court were to find that this was a defective search warrant the three incidents that occurred that were alleging mr beasley the three bonds those still that evidence was recovered by  the the agent it was secured it was time the government could still try mr beazley on those counts and the government could still go through that process but the search warrant revealed a more substantial amount of drugs and that search and finding those drugs helped to bolster the the government's case when it went to trial so not only did it prejudice mr beasley the actual seventy grams of believe it seventy grams of crack cocaine was recovered in the search that was improper under this defective search warrant but still mr beasley could be prosecuted by the government for those three alleged bonds and the reason why i point that out is that it's not just letting mr beasley go or giving him a free pass it's just saying that agents like agent taylor need to be specific they need to be not be so reckless with the truth almost every case where somebody gets a search warrant it was filed the day after this happened john it was fresh in his mind he had reviewed the recordings or the non recording from the button cam yet he still decided not to include and your honor warrant had probable cause within the four corners that's not an issue for this court at this point they have conceded that issue they wrote in their brief here the information contained in the four corners of the affidavit did provide the issuing judge a fair probability that evidence of a crime would be found on the premises that some page twenty eight of their brief so the only issue before the court at this point is whether or not after officer taylor testified at trial there was a basis for them to file a frank's motion or a motion for a new trial or a motion for a brady violation or whatnot the attorney at trial was obviously different than the attorney is now and i don't know if the court was aware of that but after trial  mr beasley filed a complaint against his attorney and the judge removed him and appointed the federal public defender at that point which handles sentencing purposes the attorney mr beasley had a trial was the attorney that it filed two suppression motions he had done extensive research for mr beasley even filed a motion right before trial arguing that mr beasley supervised release by a lesion was essentially placing him in double jeopardy for purposes of his his indictment and whatnot so he's doing a lot of research for him and he's the judge that at the suppression hearing he was asked specifically if he was wanting to make a frank's motion he said why i want to research them more i want to come up with more that but he never did he never filed the one in the middle of the trial after the officer testified your honor i believe consistent with the mccreery decision in which the defense did the defense in the mccreery decision didn't follow that during the trial but after the trial they filed a motion for a new trial and they also filed a motion alleging a brady violation so that allowed the district court at that point to lease consider the information or the accusation that the officer at trial testified differently than what was in the af in this instance the attorney that was very familiar with the case at trial after hearing officer taylor's testimony saw no problem with the test or he saw no inconsistency he filed no such motion in fact he was an attorney at think he stayed on the case all the beasley at all during the course of these proceedings so that attorney who was very familiar with the case who in fact was we had a supervised release hearing on these very issues in which officer taylor testified at that hearing prior to his trial testimony and at that hearing he talked about monitoring in broad terms he was in fact asked the question by mr beasley counsel that supervised release hearing just to be clear mr beasley it's served i  think eight to ten year sentence for the same conduct he's been convicted in federal court it gets out of jail is on federal supervised release and he goes back to his residence and he starts selling crack cocaine again that's why i got on the radar of law enforcement officials again and so ed is supervised release hearing the defense attorney asked officer taylor the same questions he said you know how are you monitoring him you know what was going on in officer taylor said what was monitoring i gave him controlled currency i searched him before and after he went over there he said i told him to turn his cell phone so i could listen to him for safety purposes and then he said we equipped him with audioboo d o device and there was a lot of questions about well there's a saudi oh did e o device work in real time and he said no he said no it doesn't work in real time they go and then he brings it back in the we review it and he goes but but we are monitoring him we have a cell phone turned on we're given him control currency we're searching before now after you know officer taylor used the word monitor i think if you look at the affidavit the way it's structured certainly it could have been written better i mean i've never seen an affidavit just like judge sauer said that couldn't have been written better and i wish they would put every little fact in i think in this case even th made three undercover buy from mr beazley they only focused on the last one because at that time they were trying to protect the identity of the c s they don't want to put in the affidavit on this state this state and this state we made a buy for m beasley because they were worried that he was going to identify who this person was in fact this person who testified at trial is name was mr erna whole f i think he has some kind of relation to mr beasley and he was scared of being so the officers tried to protect him they only the the the district court's decision the reason they're the reason they found probable cause was that the affidavit outlining officer taylor's extensive experience talks about that there was heavy foot traffic back and forth to the residence that they used a confidential source to go make a buy that they gave controlled currency to that and in the district court in fact focused on the fact that the c s actually went  made the buy so this wasn't like an anonymous tip and then they just go to the residence and they observe traffic like in the buffer i think the defense in a twenty eight j letter sided to the ronnie buffer case in support of their argument well this case i totally different in the buffer case the officers had a command complaint whatever that is and they go over to the house they see some people go back and forth they stop one of them he has some marijuana and then they go going to search for it well in this case the officers after observing heavy foot traffic after getting the information took a c s that was known to them acquit him with an audio video device searched him before and after the transactions wire team up with an audio video sent him over there toting to keep a cell phone on so in case he starts to scream they can go saving and then he comes back he gives them the cocaine it test positive all that's in the affidavit all that's in the affidavit and again they' conceded that establishes probable cause so our position is that because this wasn't raised until peel that they've waived and the mccreery decision supports that they have waived this whole franks issue at this point and that's consistent  with history in the understanding of rule twelve b and we side but if we were to decide that they had waited if you hadn't waited i think the mccurry decision leaves open the possibility of a plain error review but it's our it's our position first that they waive but if the court examines it under plain error it's our position that they can establish that the court plainly erred by not i guess suddenly after hearing officer taylor's testimony at trial suppressing the evidence i mean officer taylor as we've noted was very honest he testified consistently with a supervised release testimony he never said that they could monitor them live and then he's asked this question is the defense counsel nobody's asked this question by the jury this is my first trial actually to where judges allow the jury to ask questions so it's a little bit scary but the jury asked this question because they had heard from mr hoyer the confidential source mr hoyle claimed that during the third transaction beazley spotted the the button came that he was wary and asked him what it was and he got scared and he got his crack cocaine and got out of there as quick as possible so the jury wanted to know from officer taylor if he had heard that over the cell phone but there question was limited to that one conversation did you hear him say that he saw the button cam and officer taylor said well first of all let me explain i can't always hear what's going on he didn't say couldn't every hear he just said a can always hear what's going on and then he says i didn't hear that specific conversation and then he sort of almost off the cuff says you know there may have been one time where he didn't turn the cell phone on and then he s sentence and he says well mr hall came back and told me about that conversation in their brief the defense tries to construe that comment as saying that you know officer taylor admitted that on april nineteenth the phone was never on during that tr that well that's not what he said at all it was an off the cuff remark of well i'm not sure but maybe there was one time where there were three separate purchases here in the defense was then given the opportunity to cross examine the officer taylor on that statement no follow up questions about that statement they did ask about what he meant which time the phone may or may have not been cut off there were no follow up questions about that and there certainly wasn't a motion at that point for the court to maybe wreak sam in the affidavit which i think would have been a pro if they really felt that way i think there is a avenue for the defense to do that and there's certainly an avenue and a motion for a new trial and that motion was never made so this is being brought up for the first time  has over thirty some odd years of law enforcement experience that he was not qualified to testify that the reason drug dealers might wear latex gloves is that they could absorb the substance  packaging of controlled substances and the methods of distribution in fact when he was board dired extensively by both the government and the defense at trial he testified about classes that he's had which  discuss the effects that crack cocaine could have on people that use and distribute it he even talked about how in the classes when they were handling the substance they were told to wear go up so that they wouldn't absorb it through the skin and so the defense in their brief page forty forty one forty six they concede that officer hoeing was qualified to testify about the packaging and distribution of drugs so that's important they concede that then the page forty six they can see that he properly testified that drug dealers wear gloves to knock it could get crack cocaine i'm so so they can see that their problem is with the whopping so they thought the jury should just hear well they wear gloves  themselves but we should have been allowed to say why is that so there that's where they have the problem so when officer purpose of that just shows that's your file and it's actually it wasn't it what it went to the distribution element but it also helped explain in the videos there were two undercover videos that were and from the first two purchases and he's seen i mean as he's facing me sitting there i mean it's the best video i've had since being a united states attorney he's sitting there at the table clearly and he's putting gloves on and he's weighing it up and he's cutting it and it's sitting there on the digital scale and so what the effort was here was to explain why would he put these gloves on he was also on supervised release at the time and was subject to drug testing mr j rahman his attorney at the time in for dyer had told the jury he was going to testify in fact they were so confident he was going to testify they went ahead front of the fact that he was convicted felon and had multiple felony convictions to the jury to see how these jurors would react so this was almost like it was a way of setting this up to say well if he testifies we're going to ask him about being drug tested and this would show why he was putting gloves on because it could be absorbed through the skin so we asked why why did officer holing say they should do that that's what he testified to so we submit that's consistent with his training it's consistent with what we notify them under rule sixteen and in any event we submit it's harmless for the reasons i just stated i mean the evidence i would say simply put was just overwhelming we had video of him doing it we had the substances in court the c s actually testified identified him in court testified about all three transactions we had the officer testify about the search warrant and then you even have the judge at senate saying talked at length and we quoted in our brief he talked at length about how the defendant when he testified did more harm to himself than good because he was trying to claim he was handling some root called john the conqueror and he was weighing it up and it just happens to look like crack cocaine when you cut it up and the judge said it was laughable in that no rational person could have ever believed it at sentencing and i also know we also had a jury instruction which instruct the jury if they could accept his evidence for what it was officer hoeing just briefly supervised release condition say this is our weakest issue obviously that the court and sentencing did not speak at length about the condition however i do know that the defendant when he was on supervised release from his previous federal offense he was subject to drug testing the p actually the precess report actually noted that he had completed a five five hundred hour drug program at the b o p which is a very intensive program it's hard to get into it you have a long history of substance abuse it noted that he had prior substance abuse and it's our position it's not even right for consideration your honour's because it allows the probation office discretion whether steven submitting to testing and treatment it's whether he would have to do that later that's correct it's just need not be submitted to a jury to be proven beyond reason and have no further my time with thank you very much are vital yes thank you  government brought up a number of different issues on the agent hoeing information regarding why it is that we are objecting to the testimony regarding scrap absorbtion absorption through the skin while it is true that the government provided a letter talking about packaging and distribution of crack cocaine it certainly did not detail any sort of scientific or medical training of officer me it did not detail any of that and i think part of the reason that it is so important and part of the reason there are really two very good reasons one is that in the government's own closing statement the government comes in and makes this connection between mr beazley being on supervised release and that he would not have wanted to that he was wearing gloves because he could possibly absorb the crack cocaine through the skin and then would test positive on supervised release so that's why he was wearing the gloves now mr beazley had testified about this drug john the conqueror that that's what the reason why he was wearing gloves but as john never are that it's sort of a synthetic and herbal type and that's my understanding of john the conqueror but part of the issue there is that the government directly tied that in to mr beazley as a reason why he was wearing the gloves because he didn't want to violate his surprise the government states that there was information that he had been through training before we don't know anything about the basis of knowledge that he has that he believed that crap could be absorbed through the skin we were provided any notice of that we could have called an expert we could have called some sort of look for studies of whether crack gets absorbed through the skin but instead we simply were never provided that information and that's the problem there and the reason why it's important the reason why it's not just plain air or clear is the reason why it is plain air clear excuse me is that that was something that the government used to tie it all together in their clothes and if they had not used it for such a purpose then it might be something that could just be might answer the questions they had seen the videos but he had given an explanation that what he was doing was john the conqueror so he had given an alternate explanation but what the government did is they holdings testimony regarding crack absorption through the skin to bolster their argument and bring it back together and that was the prejudice thank you thank you counsel the case of the submitted