becomes fine that's that's correct and it's not that's that's the crux of the whole the whole bar but there are a lot of other i'll be honest with you of with the permission and there should have been a footnote in my brief rather there isn't one of the beatles case i'm not sure i understand which question i thought you said it was the st question that you grace but isn't the st step question yeah it's the st step question and i'm saying i'm not going to argue that that or stand  that's my understanding moving on to the substantive issue which i really pursued here and that the suppression motion oh regarding the wiretaps first of all i need to frankly as an advocate that was under the misguided my misguided idea of trying to give my client an opportunity to argue some of the issues that he wanted me to pursue that i could not as you may have noticed  was preserved exclusively in the district court and that is whether or not because the orders for the wiretap intercepts are did not disclose  the d o j official who approved the application the order themselves did not have it therefore if i have questioned reading all the papers i understand your point that it did not provide the name of the person who signed the a thoughtless ation application that's correct the application was signed by a deputy assistant attorney general and the name of the person was on the application when it came to the order it says as authorized by the department of justice a puppet deputy assistant attorney general so it does identify the person who authorized and signed it the question is whether that identity is suppression identity when it refers to the application says the application was duly authorized by the deputy assistant attorney general which is one of the six or so persons authorized by statute to sign and that has been the procedure followed in apparently everywhere including than in the d c circuit where drug rogers went the other way on this issue but my question really is can you really say there was a noncompliance when they followed that practice that level of identity and when the specific name is disclosed to the defendant the same time the order is disclosed in other words does that you have to get it has to be unique person one it's one of her and her stand that reasoning is very reasonable right but i don't know if it's exclusive in the other words and the d c t prosecutors have been following the practice o scurry issue where the u s attorneys are being instructed to include the main in the order but that doesn't mean it was necessarily violation of the at least it struck me that at that men would be known well it is unknown but at in this case the deputy assistant attorney general there are five or six of them but their specific offices and anybody getting these papers i can find out because at the very same time they get a copy order to get the application and the application is included by reference and so the real question is does the actual name have to be there to satisfy the statutory term identity and i think judge rogers might be the right answer but i'm not sure is exclusive answer and so i just raise that without assuming we actually have a violation because you know the practice that was followed and nobody in the government thought they were violating the had to disclose the person in the actual office who signed it the deputy assistant attorney general and that was quickly that and this issue was not raised a lot of by either party that there is a distinction between wire and or communications versus text messages or electronic i have to concede  and the other thing is when you when you look at any th amendment question what you're interested in is deterring to rome full official conduct but here if there cases or in any search case you don't want the executive branch going wild the executive branch did what was required of it and that is the executive branch gave and i think and if the whole purpose of to do that you know i don't think they're all of the executive branch gave the name of the deputy assistant attorney general but they're prepared the order for the judge's signature did not include that if i could l party of the order of the allocation and the water act is given the at that level of identity that the question is does identity of necessity include name it and i believe it further trial i don't mean to be excluding all the you or your arguments there but if you agree that the water could have said the attorney by aut also a statutory authorized person so the question is the name therefore is not necessary by the word identity in other words when the statute uses give the identity of the person who authorized it you don't get me to give the name if it's the attorney john you gave that i thought i would after that without yeah all right so if we don't need to give the name now what do we look for in the statute that requires us to give the name at one level when we have deputy assistant attorney general when there are five or six of them or the attorney general where there's only one of them how do we read the word made please the court the wiretap evidence of tain pursuant to traditional orders that did not specifically identify the names of the authorizing bags which refer to the application in the believe given language of the statute given your historic practice it's much better to have the name of the official or the orders self and i think you just save yourself a necessarily require suppression and if you could even if you say well no there wasn't substantial compliance if you reverse a district court on that very serious which would be a very technical basis and we'd go into the whole question of lehi these people are certainly pursuing i'm sure we're we're we're proceeding under a court order a warr that's the law after that right do all the law after dark is that if the order is insufficient on its face anything insufficient on its face if it doesn't contain one of those five factors in specifically identifies the name of that authorize the authorizations that cross reference is sufficient to take this order out of the facial insufficiency into a capital defect that simply goes to the  legislative history which indicated that congress was not intending to press the suppression remedy beyond the present search and seizure operations we interpret that to mean a that congress wanted  set forth they are in so our position is that when you take the language of the order that specifically refers to the application of the assistant us attorney says we have the court is given full consideration to the matters and then later on this is on j six hundred and fifty nine dollars pursuant to an application authorized by an appropriate official of the criminal division so how many references are there to be application of the order in the order of their several there full consideration and then also says the the application has been authorized by a back then we would say in that case the order sufficiently cross references  the order to something outside of you or to complete identity the attorney general is only one of the united states and everybody knows you can find out where that is but the face of the order doesn't contain his name it just says an application where you identify the specific system deputy assistant attorney general who signed the application you don't have the person's name you have the specific one who signed the act cation the applications part of i don't understand the difference in directing the person who reads attorney general to the outside or the person who is the deputy assistant attorney general the outside once you get on to that type of analysis then you have to get into the notion that identity might be a little broader than just the n and that's that's my whole point that i would not from your point of you can see that there was a defect necessarily it was a practice your office was following them all offices were followed until scurry and then after scurry the department of justice issued a notice to put them a man well that's fair enough in the name is much better it's much better but that doesn't mean there was a violation and that's my whole point because you start reading data and if you can see there's a defect in the identity you've got to work hard course to row i understand exactly everything you're saying just in our i must say over the position of the department of justice and not just in this and the practice of attaching the application in the name and then referring to that person in the order and issuing this directive or the clarification direct it cannot be what you're saying and i just think you're just you're kicking yourself in the shins well don't you have to say that or not or do you think you've been following this practice illegally the whole time they were we're following a practice the whole time after reading doc which indicates that there is just as you have to comply it doesn't say what the word identity meets the only the case that as addresses identity different from the way the practice was followed was scary and i suggest to you scurry is not a badly reasoned opinion at all but it changes the game for the practice that was being followed by the department of justice and for you to come in and say this is record that's not in the record and so as far as whether there's a uniform method of attachment the answer is probably not and but i do know that stables are not something that the course like because they have unstable and when the  valid in all respects which if you never get it because you have the water the order goes as far as it is and then there's a cross reference to the application which gives the name if that is not a facial defect  that's our argument in the us i don't understand and i appreciate your argument all i'm doing this going back to the supreme court case where the supreme court said it is clear that sub paragraph two covers at least orders failure to include information that twenty five thousand eight hundred dollars specifically requires the order to contain an order lacking that information we deviate from uniform authorizing requirement that congress explicitly set forth which are also literally within the phrase insufficient on myspace undersell i think i understand your gloss but if i just if i didn't what about the other thing you're talking about a harmless error what about that when we have a congressional in action we say that there is harmless error and we have a recent supreme court case contain the identity of the individual and its various cross references to the application that that that you have the position of donna fired in the order and then you have various cross reference this that's contained within on the order the group cross the word containing the one and something which is a little bit more on the hyper technical side and i'm not about to go against  the hot case i think that makes clear at least that as as a minimum of what would be an insufficient case or is one that does not fully comply with twenty five  word contain whether it's within the concept of leon over this and the concept of harmless error at some point the system cannot be gets life in prison as a result of the suppression not applying as he had urged the court below and he gave every opportunity before a court a trial making every effort that on a technicality there was a failure to comply with congress said this is how you can get a walk and if you do not do it this way there should be suppression the hama has confirmed that fantastic job of outlining all the testimony there was a mention that well we have plenty of evidence because his cousin mr wright testified against him everyplace that you see in the probation officer some of mr rudd's testimony and there are many i just ask one question of the government the and in the oral argument before the district court there was a circular that came out from the o e old following story what is the o e o and is that application by assistant us attorney black person now is not in there before now these orders during the da the litigation even before thought of went to the supreme court the department right and in light of screw that  recognize it was probably essential to begin ovoid ing problems like this which is two thousand and thirteen i mean this is the same order that was followed in d c circuit two they quoted that the in other words they just referred to the office right but now the now those circular rick has the blank space for the name this is the latest go buy that i just received it may have been he does that's something you could make available to the court i want to go back to the office i will check with