and question information from the government that the government has in its possession to be allowed to make that argument more fully for the district court how many miles is the checkpoint from the border you know to the checkpoints about seventy miles i believe seven zero yes you're right i think that's correct and you're on it's it's our position that it's this that this request was material that  the government's position was that that the items requested were not material and that mr soto had not cleared the threshold showing required that the article the articles that he submitted were not sufficient enough themselves to establish that there was some question about the purpose of the checkpoint and that the checkpoint had previously been found constitutional by the supreme court in martina's for a day it's our position that this is a factual determination that constitutional duty of the checkpoint is predicated on a factual question as to what the actual purpose of the checkpoint is and that as such it requires constant revisiting and of the supreme court to decide that this changed not in the intervening forty years i don't think it's changed meaningfully or under the case of in that was the edmund does address the constitutionality of checkpoints in general and reiterated that it previously found a checkpoint such as the one i you know i think that that possibly could fall within a permissible administrative search because this year early i thought was that although this is not the border it is the functional equivalent of a border and that the government could do could have the kind of check at that point that it could do right at the border there's no doubt about it that if this the government can't be engaging in sort of general law investigation at points internal to the united states this is not a situation i don't believe that murkiness fuerte rests on the proposition that this is essentially an extended border search this is an internal checkpoint that set up a good distance from the border for the specific purpose of immigration and i think it's our position that anything that is outside the narrow primary purpose of investigating immigration issues  so that's what i'm trying to get of why those is that have to be limited to immigration why can't contraband which is the other big thing that happens at the border the two two things that happen the more the one of them they check to make sure you person that is allowed to enter the united states and the second thing that happens at the border latino it is a check to make sure you're not bringing in something that you're not allowed to bring in or that if you know if you're  again that the difference here is that this is an internal checkpoint so people when they're crossing the border when they're coming in at ports of entry subject themselves to a broader search they centrally surrender their fourth and then the rights that's not the case in these internal checkpoints and so the supreme court has been clear i think not here's my question but say you have this you have this discovery and then you could prove that fifty  percent of the arrests that arose out of that checkpoint were for drugs and twenty percent were on immigration  and another twenty percent more on contraband of some kind other than drugs so what what would your argument or indianapolis what would it be  what you would with the majority of the arrests or just some significant portion have to have to be for the tournament not on law enforcement purposes or not border purposes your honor i think given the facts as you related them yes in that scenario the checkpoint would no longer be constitutional under martnez fuerte that again it has to be narrowly tailored to having a primary focus designed to ferret out immigration violations and with sixty percent of the arrests being related to drugs another twenty percent other contraband i think that that clearly this would clearly establish minute on the discovery about the three teenagers involved in the maybe the other investigation yes you know and that's about all the time i have left so i'll do that now you know we requested discovery relating to fishing rios and his drug trafficking organization the district court denied our request and said that we could begin said could rely on the stipulation i think it's the government's position and the district courts that our requests were for materials that were not relevant of course i'm the only person in this room related to this case who hasn't viewed those documents so i don't know what they said but it's our contention it's certainly their relevance because the stipulation came in a trial all the parties agreed that the stipulation itself relating to christian rios was relevant and seems to me perforce than that the documents in materials upon which that simulation were based information from which the stipulation was drawn is also relevant to our consideration but what's really important i think that district court missed in its analysis is that what i tried to emphasize was that these materials are provide potentially rich avenues of additional investigation to be conducted by the fence and i think it's important to remember that procedurally in this entire issue about christian rios and the investigation that the government had done into him was as a result of that effort by defense and by my investigator to look into the parties in this case and it was it was it was us that found the affidavit by agent for kramer so you know if we had the opportunity to look into this information and to pursue these leads it's hard to really it really demands brings a defense when but the basic idea you had the basic thing you would hope to discover i apologize for taking you over and i hope that the chief judge will give you at least a moment to respond after the government had his turn but i think the defendant really needs to show that these three teenagers would have planted the drugs i mean otherwise i mean there's there's no real point i mean the drugs are there either he put america somebody else did the only likely suspect for somebody else or the three teenagers right i mean that's that's the only thing he's really hoping to find well again your honor the three teenagers that are in custody are directly linked to the drug trafficking organization that really i know this is and is primarily responsible for these drugs  dispute was whether or not mr soto was also related to that and that's really where this case ties in with stever and i think the argument here is actually stronger because it's easy for the defendant was saying hey this kind of thing is going on in this area we don't have any information that a particular that indeed any drug trafficking organization is involved in this case but these kinds of things are happening in general and here we have a much more focused and specific proof that indeed there is a on significantly changed in forty years so we have it will we have a long separation of time because law is the same but the checkpoint may be operating with different consequences now directly on in two thousand and eleven in or in front of us with respect to a check pops checkpoint in arizona south of tucson and the defendant had sought a hearing on the question of the primary purpose of the checkpoint and the government sponsored no you shouldn't get a hearing because you me the government can't have it both ways that the fatal flaw in the arizona case was that no discovery been sought head of time and here we have exactly what the government or zona said should have happened and you say op sorry can't have that either now i'm not sure judicial of hoppe applies against the government of the same way it would apply against a private party but nonetheless it does bother me that the government another case tells you well here's what you should and now this is being done and it occurs to me that maybe in this particular case materiality well how is he supposed to make a showing absent discovery what he needs to learn is what's actually happening at the checkpoint how many of the arrests or investigations and so on have the evidence shows this material to my my theory it didn't raise the question of whether the primary purpose of this checkpoint is no longer immigration look it's simply wasn't sufficient for that the only other article submitted have to do with this checkpoint was involved a quote from  congressperson in two thousand and two that fourteen immigration apprehensions were happening are you prepared to represent that the primary purpose at a time command is not the introduction  interdiction of contraband our contention is that the primary purpose remains well what evidence do you say that while there was a hearing in the district court and in the district  an officer testified that his experience at the same committee checkpoint approximately eighty percent of the arrests had been alien apprehensions and that he had reviewed materials from other us and approximately ninety percent the materials reviewed that there are other purposes so in watson and we talked a little bit about other police will you have somebody who testifies to the us but the other side is powerless to underdo so on information because all the information is in control the government again there has to be i believe there has to be a preliminary showing that there's material information out there and the defendant can't get this broad range of discovery just by showing that there have been a couple of drug apprehensions in the last ten years or so they would need to make some further selling of materiality it's also our position that that discovery isn't available on this defense anyway because it's not a defense to the government's case in chief armstrong basically or that rule sixteen isn't challenging whether he actually committed the offense or at least in his challenge to the check point he's making a much broader challenge trying to get there was suppressed course correct your honor but you know it and if it turns out s is doing so in the courts as well despite that if it's a fight the fact that if you're corrects the defendant would be not guilty you don't get discovery on this and it's similar in other ways to this case because unlike the cases that you're aware of on the discovery it doesn't just deal with this case that the materials that soto is requesting in this case go to the government's conduct of a number of cases every case that goes to the checkpoint and it would require the government this is just not discovery that's available that if and it's not just available because it doesn't go to the police well ok i'm not speaking for my colleagues on this we're not conferred ahead of time on this case but i will say that i'm quite content to have the government be doing  it's the primary purpose of the government and if it's a legitimate checkpoint i rather suspect that the proof would be that it is legitimate i would be much more comfortable given the number of cases that we have coming through here dealing with these question alternately is as you know whether the district court abused its discretion in not ordering a really broad range of discovery based on two articles that question a checkpoint that really the supreme court and this court has confirmed for forty years the discovery on the three teenagers because of you knew they were considerably one of them could have said i was in a some way going to a soccer game but this other guy grouper for me was a bad leg you know he was carrying drugs and he shoved the drugs under the mat because we said we should get out of there you're the judge suppressed or not suppressed if you just now discovery on it because he reviewed all the materials and the court of course has all the materials here and the record shows and the public record as well by the way in the affidavit in support of a search warrant us the public record shows that all three of these juveniles none of them said that none of the juvenile said that there was one bad actor or that there was anything to do with a career he didn't know he had the drugs and so the district court examined that and determined that identifying those juveniles would not aid the soto's claim that he didn't know about the drugs in addition  the agent who was responsible for the investigation of this christian rio's did check and see if any of these juveniles were likely to have come through the poor at the same time as so there was no connection between any of first with respect to the reals discovery at the end of the day my primary contention your honour's that the district court applied the wrong standard here what the district court essentially said is i've reviewed the materials there's nothing in here that names mr soto there's nothing in here that names and knowing couriers but that's not the full scope of the rule sixteen inquiry it's anything that's material to the preparation of the defense and i think this record got it wrong by applying the wrong standard with respect to what you  you don't know right well i can only go by what the judge said and those are the things that he said when he came out the district court said i thought if we look at the materials and we apply what you say core expanded and we find that there's of sending it back and then levy you argue to the court this is one of those difficult situations and i would love the opportunity but i understand that the court can probably make the same determination if you're one of the last two quick points i make the government has raised this trial armstrong issue in the dog defense cases previously this court has flatly rejected that in thomas the court said the government made the exact same claim the court said we board decided this  entitled to dock discovery there's no requirement of materiality showing in that context for the reasons that you articulated judge fletcher that the government's putting a witness on to support its position defense has to be entitled to receive discovery to engage in meaningful cross examination of that witness otherwise any hearing is in airports because there's no meaningful opportunity to cross examine and the last thing your honor i know we didn't talk about the fourth amendment issue i do urge court to consider i understand that the  the fourth amendment issue the first one in my brief your honor i understand that the factual findings by the district court are reviewed for clear air and that's the deferential standard but i think that the deference is not absolute and when the  opportunity or an ability to interview those three boys know to go to yours the only information we had about them was contained in the affidavit they were not reference even by name so we had no but your client claims a game right well he who they are that's part of the issue is that we don't know if the three individuals who are in custody are the same three individuals that were with mr soto on the day of the arrest or not they could be in which case well you know i'm making my question more precise if i can my understanding is the defense he wants to make is that these drugs were put there by one or more of the three boys correct and i'm asking you does he know who the three boys were to give a ride to you know your i see so these are just