search will cause the united states supreme court has said that question of the reliability of the information to justify a search is particularly important in title three electronic surveillance cases might look to me as though the informant was highly unreliable woman who's she's in jail at the time she's a dope dealer herself highly unreliable but if i had been magistrate judge for the district judge reading the search warrant affidavit my thought would have been well marshall be agent told me she's unreliable he told me that mostly her rather than marshall and the franks question is whether marchant lied to the judge not whether she lied to marshall at once once marshall disclosed to the judge what kind of a low life he was relying on it to make the the that determination was was doubly misleading you are correct that the marshall says now at the time of this warrant application she's in jail and he says convicted she's been convicted of a drug offense and there is information in there that would lead him to believe that she was involved in drug dealing if somebody is involved in drug dealing of course that that one ted gives them simply says is that she informed them that that there had been attempts to buy drugs the night before that's what the affidavit said what the judge doesn't know and has no reason to know from reading this affidavit is that she is in jail and could not possibly have observed this what the judge doesn't know is that they were warned about this so they did a follow up interview they go back and they say how could you possibly know that took took upon themselves was identifying what they saw as a credibility problem apparently they satisfied themselves about it but they decided not to let the trial fact you know that there was this enormous credibility problem didn't the descriptions make a finding the fact that the mistake by marshall was not intentional or and it was not recklessly and even if it had been that that particular program would not have disclose that the fact that she's been confined with the district court did was it allowed a frank hearing on on the issue of whether when she said that she observed a drug sale on february seventh which was absolutely impossible because she was in jail whether that was reckless on mr agent marshall's peril if you exactly that she observed that she said there was a growth trail when she was in jail and couldn't observed it right and the court allowed a hearing on that issue but it did not allow a hearing and and if it were the kind i would sort of underwhelm with that because there are a lot of things where we but the fact is that what the district court didn't allow i mean it's one thing to be able to ask mr marshall well you know that language suggests that she observed this when she was in jail and why didn't you say she was in jail on that occasion all my boyfriend would visit with he didn't with me yesterday well that was a lie it was simply untrue the records of pain prove that that she had said that she had a visit on april ninth and would have another one on the tenth there was no visits on those not given a frank hearing on that matter if it was not allowed to say well the government notes reveal that they do interview this you on the on the tenth of april she says i had a visit on the night that's how i'm learning these things she didn't have a visit on the night but there is no frank cheering permitted on the issue of whether they then checked those records or why they did not or why did they not why did not they not allow the judge i mean this judge is under the impression from reading the affidavit that she's observing all of these things personally i don't understand why you'd be under that impression like that statement one that you alluded to a moment ago affidavit says on february sixteenth two thousand and c s number one advised attempted to purchase cocaine from baby on feb fifteenth two thousand it doesn't say she personally observed that most of the things that we purport to know are not things we personally observe when a prosecutor or defense lawyer tells a jury what the facts are neither of them observed at the jury says what the historical facts are they didn't observe the judge or to make findings of fact they didn't observe gosh i think twin towers were taken down by al qaida september eleventh i didn't observe it and we most most of the facts that we my point is this your honor no one would would count as an argument that the issue of whether if a person makes that statement in the temples made by drugs last night that they were in jail when this event the asli didn't  happened in the jail no one would maintain that the fact that we're in jail is not relevant to a determination a lot of doing but at least you could know a lot of things while you're in jail i mean gosh my wife and i talk about what's going on with our kids determining the credibility of c s one when the magistrate is being kept in the dark that she's making statements about events that are occurring most she's in jail for when the agents themselves new would close the question of credibility because satisfactory answer i would submit that the there is no case that's necessarily factually similar but but the notion that the magistrate has to be informed of problems with the informant's credibility that is why does the government put a statement in there that this person is not known to have ever given false information and i submit that in a situation in which we know that she told these agents could they were concerned about it she told them about the milwaukee drug operation they said how could you possibly know about that she says i saw these things when i was in milwaukee and they don't put that in the affidavit because they believe types of it that it was a false statement there was no evidence that she invading were ever in milwaukee together or that milwaukee that either baby or she was in milwaukee they pulled out the lie that is that she was there in walking but what they didn't inform the magistrate of is that that was a statement that was so apparently fallacious you she was under house arrest you took this bracelet off there was a period of a short time in december where she was running around but she certainly wasn't in milwaukee and they said well she learned about the drug operations from things the baby told her when in fact she had said she was in milwaukee and then they say they don't the magistrate doesn't learn that there are profound problems with their claim to have been in milwaukee but allegations are framed as things that she knew from dating but before they submitted this affidavit again agent wilson was the vendor she was said back and we've listed in our brief specific questions that she was there how do you know this information about a baby in milwaukee and she talked about observing him and in milwaukee and when they realized that they would not want to put that statement in an affidavit it got into that she learned it information offered to support a warrant but but to have before it relevant information on what you know does this person have a track history have they been found credible before you might question what you're already on the point  that the need for evidence of reliability not not to vision sufficiency but a are liability in the show only required when judicial authorization of a search and so on is especially great in the case of electronic eavesdropping so the the court your honor him with your liam system united states attorney on behalf of the united states as the court can see from the record this was a case that was litigated extensively over a period of nearly three years there was heavy litigation at every stage of the proceeding the district court made thorough and lengthening and repeated findings on the issues that defendant raises on appeal and the united states would submit that there is no showing that the district court clearly erred in making those details findings could you talk about the intention that she lied about being in milwaukee the agent knew she lied about being in milwaukee will the the district court of finding on that matter was in its order denying the motion for reconsideration of that sort of record one thirty eight through one thirty nine and essentially and it's interesting if you look at the opponents brief here at just fifteen thirty one there are a number of contentions about what the record supposedly showed with regard to this milwaukee trip and there  been and that the agents knew that the information was false in other words there's there was this assertion assumption that was made without citing to particular evidence in the record of any type cell phone records or anything else that backed up the defendant's assertion that the truck must have been false so far if what you're saying is that the finding of fact by the charge at one thirty eight one thirty nine is that marshalled did not that what frank says about is either any intentional or reckless false statements or an intentional or reckless omission and the cases i submit like your honor that there is no ca that there must it must have been false because pen register data didn't show didn't jive with certain calls for example but the district court looked in depth at the showing that the defense presented in the court below and found that for many of those statements are simply was no basis for concluding that there was even a false statement we make sure you understand that part of our given that it's false as well the pen register on the phone doesn't show that any calls were made then and the and i think it's important to put this in context the defense argues as though the agents efforts in trying to determine the basis for the informant's information is somehow insidious that that shows that they were trying  to change the record they knew that it wasn't true and therefore they had to go back and try to alter the record i would submit that what that shows is that there was diligence and good faith on the part of the agents here in trying to present the information to the magistrate and make sure that of the just record make sure that the basis for the informants knowledge was confirmed wherever possible now in this particular instance what happened was the agent agent wilson knew that the informant was even in that instance your honor to the extent that there was some finding that that initial report might have been false there is no evidence to indicate that the intense that the agents had there was to mislead the court it's exactly the contrary that the agents were doing a good faith job of trying to verify the bases for the informants statements and that there it was not the case that they were trying to mislead  claimed was readily available information about the informants mental state that there were that there were public records that showed that the informant had mental problems and that there were other criminal records that could have been  and the court in melling this court found that the failure or the decision by the agents not to go in explaining that additional information even though it may have been available did not rise by any means an alias when she was arrested in reno and what the court found the district court on that matter was that one there was no evidence that that material was omitted with intent or reckless as that would be required to suppress and to that even essentially with regard to information like that it was not material in the overall mix given that it was disclosed that this was a person who had a criminal record who had been committing crimes while on probation case was a similar situation your honor in which there was a joint investigation or an investigation which both federal officers and state officers were involved the state officers did interview various people about the crime that was under investigation and people made sort of offhand references about the unstability instability of the informant essentially and that information again was not  in the same investigation so to the extent that they were not that the agents did not find out about these allegations about the national state that was claimed by the defense in that case to to intentionally under what the government would characterize as suspicious circumstances in which the informant essentially recanted saying anything to the authorities and the district court identified that declaration as the primary basis for the franks hearing and we don't hear anything about that on appeal none of this at that the franks hearing there was really no legitimate attempt to controvert the agent's testimony that they had actually gotten that information from the informant and the this report had a full opportunity to judge the credibility of the agents in that context the other two bases really didn't go to this custody issue that the defense continues to raise on appeal and the findings that the district court made in frank's hearing undermined the argument that the defense makes just for the rest of the instances in which custody was supposedly admitted only that is it in a misleading way because essentially the district court again took testimony on these very specific points and found that  for example as to the february first versus january thirtieth instance in which basically the affidavit indicates that on february first the informant said that there ha fully fleshed that issue out the defense had a chance to cross examine the agents and what they found was that agent marshall was compiling the affidavit by taking three of the few investigative reports from various people who spoke to the informant and trying to piece them together in a way that was received cocaine from bailey on february sixth so that's the context of the that paragraph then further along it goes and again this is a drafting issue essentially the court found it does seem to suggest that the  informant observed the cocaine on february seventh and at which point she was in jail but basically this was the court had a chance to see a product of agent marshall in good faith t it simply is not raise the issue it's not true at all that there were instances in which the court found that the informant was reporting percipient knowledge of transactions on the dates but she was in jail and essentially the court found and did a very detailed finding in its in its order that that in the vast majority of instances it was made clear whether the informant was reporting first hand knowledge or whether she was passing on information that she had obtained from someone else this is that excerpt of record one twenty two and one twenty three the point being that in  at two eighty two and eighty three and again i think where the confusion came in and this was this was an issue on which there was testimony at the french hearing and again jim marshall essentially the point with regard to this paragraph was there is clearly there is a description of a sunday february sixth two thousand transaction and it is the court essentially found having heard the testimony that this was a drafting error with on each marshall's part in terms of listing the date on which the over here happened but it's also important to note that the court found that even if the entirety of this paragraph was excised the affidavit would still provide more than ample probable cause to support the wiretap so that the court essentially made a finding that there was no showing of intentional or wrecked or reckless intent or rec  situation is that judge the district court judge denied a frank hearing on the ground that the and this is in its opinion at page one thirty nine cited by the government that c s one had not agent wilson c s one said that she knew this stuff about milwaukee based on her observation when she was in milwaukee so the court was saying well c s was never represented there had minimal walking trip in fact she did that beatty very quick point i mean another factor of the failure to disclose the custody is that when you look at the record with your criminal record which wasn't disclosed to the very full semester the alleged defendants but minimal just the fact she had a drug conviction and look at the custody status it becomes clear that every time that c s one is arrested for buying drugs on the first day she's in whether it's december fourteenth or february seventh she's contacting the f b i seeking leniency by making not abide by making up by by advancing statements about drug dealing and other people's part and and you know that that notion of is there a motive to lie is quite evident if you look at the and more willing to apply suppression remedies and the reason for that is that congress has recognized and set up a scheme that reflects that this society is extraordinarily wary of electronic surveillance and and demands that it be