but keep track of your own time if you can thank your honor and my expectation is accounts for mr chung will be discussing severance i intend to focus on the search issue specifically curtilage the deputies involved in the search in this case and  government tried to salvage the fruits of the search or searches that ensued by relying primarily on an accident see specifically the deputy lease both we saw mr tran throw a baggie that he suspected contained drugs if you if you don't have a possessory interest in the in the land how can you raise a curtilage org well in both the howard in the granbury cases this court has held that guest at a property could raise a parole search argument in those cases i presumably the interest there is disallowing unlawful searches at third party residences but it also could be disallowing an expe good protects the privacy interest in the home and then we would go to the standing issue which is does mr trying as a guest have a privacy interest in another person so you have a privacy interest in the curtilage well the curtilage is considered a part of the home asking a different question could the district court have reasonably found that there you have demonstrated that these officers were in the curd which i don't think so i mean the officers who testified that they came across the neighbor's lawn they came over the fence they came across the left the front of the house across the yard and effectively turned into the garage there well they're in our case law suggests that when you're in areas that people ordinarily travel in the driveway a sidewalk etc that's not a curtilage issue i don't i don't i would disagree particular with respect the supreme court's opinion jardin judge dean the government made the argument when the officers were going up there with the dog to do a sniff search that well they could have just been going up to the door to you know knock on the door and the supreme court says look there what the reason that they're knowing is relevant to our consideration and the reason here was a case where they actually went to the front door well here they went into that house well but not your in order to observe what happened in the garage so they subsequent going into the house is not relevant to the curtilage argument is it well i think it is under jardin their intent is relevant but but i guess stepping back more importantly guardeen they didn't go into the house either they went up and sniffed around the house of the great right so my point is that what occurs after one enters the curtilage really isn't really it if they're properly in on the property what follows is ok if they're not properly on the propert were actually in the garage there was disputed evidence or was conflicting evidence in that respect so that's why a an evidentiary hearing didn't ask for an evidence or here for that reason the only reason your client asked for an evidentiary hearing was to demonstrate that he had no possessory in house because the government argued this was a parole search and the court said i don't need that i'm not going to find it to be i don't believe that that's correct i think around sean's excerpt of record one hundred twenty nine to one forty or so that there's a discussion of we'd like  for anything except the notion that i want to show that the pearl search was no good because this wasn't my house and the judge says i'm not going to find it to be valid parole served so i don't have to have another again i think in the in the one twenty nine to one thirty one range of chong i could be up by three pages but that's where the key discussion going on and i didn't hear counsel i'm sorry i didn't hear your answer to one of her wits questions because when i look at the photo this isn't a situation where you've got a long narrow driveway and curtilage is really critical in terms of where they were positioned this is a situation where there's a short driveway and there's one of the photos where from the interior looking out it's a short f it's plain view when the doors open you can see fairly easily so just what's asked whether there's any evidence in the record that demonstrates exactly way or the officer was standing and i didn't hear your answer to that well i think you have to look at the about oh i'm sorry wrong side two seventy one to seventy two he says we came over the fence on the side crossed in front of the house and then it's easier to to ninety five ninety six and three zero one he said we have the residence and came around to the garage door so it's evident what they're doing they're avoiding they're trying to avoid the people in the garage seeing them so the coming in from the side and swinging around there's a car parked in the driveway one of those photos shows the darkness that night there's a car parked in the garage so they come around the front of the house and then they shoot right into the garage there so he's within a few feet of the threshold of the garage at best when he comes around the corner and allegedly sees the the baggie being thrown assuming that you did preserve a request for an evidentiary hearing and figure  over my time for that that's all right judge seabrooks point interest so you say i should have that evidence you're hearing because we should have been able to prove that they were in the garage and you have a trial when the two officers who would have testified at the evidentiary hearing testified and the motion to suppress is renewed and the judge says denied so isn't our question whether or not do it now we're making we're reviewing a factual finding by the judge or we did that you haven't shown that they were that there was for fourth a moment violation on these facts i have a few answers that number one you know would be normal for defense counsel to start asking questions with respect to suppression motion during trial unless they were somehow relevant to the trial they weren't here when this testimony came out was actually during his direct testimony when he's talking about what he did and he said you know upon entry i think were his words or when we made entry we saw the bag to be thrown and then at a break once again he's indicating that he's in the garage when he saw this happen and they didn't renew the motion to suppress and the judge says i don't have enough to suppress right now well i don't know what to make of that ruling exactly but of course it's the government's burden to prove the search was valid i don't know if he's finding i don't know what he's finding with that finding but you know we big picture i don't know that it matters because a foot or two outside the garage or inside the garage is clearly within the curtilage the curtilage if this if that we're gonna says a short driveway  chong i'm going to dress the severance issue but before i do that just briefly with respect to the court's findings during the trial when the motion was renewed the district court specifically stated that he wished that they had better  more that he that they had a better record on this issue and then said i don't think i have enough to suppress the search so he expressed that he again he's the one to deny the eventually hearing and then he says well you know really wish we had more evidence on this and then he goes back and  but i don't have enough to suppress the search so he implicitly shifted the burden to the defense but i'm going to move on to the severance issue now mr chong's defense a trial was that he was a patsy who did not willfully participate in his uncle pac trance drug dealing trail on the other hand argued to mr chong was the only guilty person in the courtroom his counsel repeatedly urged the jury to convict mr cha on the basis of been admissible evidence including the videotape preserve this issue did you waive the did you remind me did you make the severance motion mr tran did the severance motion right mr trans lawyer objected made the severance motion it's the same issue but there your trial counsel was and i can understand the reasons why it was perfectly happy to have the cases tried together presumably to argue that the other defendant was the real wrongdoer not your client the level of representation t my client received in the district court is another issue that i raised in the end i think that's an issue for a twenty two for fifty five or so but my question is with respect to reviewing the waiver argument you never made a waiver argument  a couple things first of all the idea behind preserving an issue is that it's brought to the district court's attention this was clearly brought to the district where i played it by by your by codefendant so this record is sitting there saying i don't think the codefendant has made a good severance case and you're not you're nobody on your side is popping up and saying but we we would like when you're on again my client i'm sorry he was the terrible representation the district court is going to stand up and ensure a record that sufficiently developed for us to take up the ineffective assistance of counsel issue now are always there for their factual live element that would be necessary for that claim i think it's sufficient on the basis of the entirety of this record but i you know i don't we're really going to get into that now what i'd like to you know that's like more appropriately handled in the twenty to fifty five but let me ask you this there was a suggestion by your clients counsel that we are the trial counsel below know that there was a suggestion by trial counsel that there might be dressed defense that he was i think he was addressing a notice issue which doesn't even exist in this context but that he didn't think about it until he flushed it out on the morning of trial that was his quote and and did not expressly proffer a specific  again the this court is held on numerous occasions that is long and then there's no requirement to raise an argument that would be futile that the court has already ruled on it the court has already denied severance on the basis of the exact same issue that was raised by the and even if we go with that layer of that that argument heats up the entire rule that you need to renew it the judge struck me here that the judge was fairly thoughtful in this issue you you know he said i think i got a granted and then said so what's the defense going to be and twice as well he ought but he did say on the record i don't think you made a sufficient proffer of a defense that would be antagonistic to you not i think that it came i'm not sure when that came he did make he did make some finding but i think that actually came before he granted the severance and then reversed but unless my point is that since the judge went back and forth on this issue why would it have been futile you never raised it once but what if you don't not to or not to raise it at the close of evidence and i don't mean  criticize the district court's analysis if you didn't make up with you not you if the other trial counsel didn't on behalf of mr tom make a factual proffer that the district court could have to analyze and so now you're saying the district court  should have thought of it on his own couple quick points the district court was aware of the issue the district court specifically noted that the defendants were pointing their fingers at each other the district court has a duty to be a gatekeeper and to supervise the conduct of the trial and i think i cited in our circuit case where the i think it was the fifth circuit or maybe the tenth held exactly that that even that isn't an objection a truck court in circumstances like this has an obligation to make to be vigilant and then finally even  don't disagree with you that there are certainly in the cases that's what happened here but that's not enough for severance i mean in this instance the jury ended up convicting both because there's it's not mutually exclusive so why is this substantively a severance case even with the understanding that at various points they're saying oh he did it he did it the jury concluded they both did it and there's certainly sufficient evidence in here to support that with the jury concluded they both did it in two dick and in  mayfield and in other cases where this court is reverse what are you saying in other words what i'm trying to get at is if if there's a point in the trial where the defendants are suggesting that the other person is culpable you'd have to have a severance severance is much more significant has to do you say that mr chong was claiming that mr tran was guilty in what why did you do that he his case confession said i did it all myself his argument at trial such as it was and again we get back to the right is amazing to look at is that focus on the evidence he was merely and mr transparent focus on the evidence for me as opposed to the argument part of the evidence that was excluded was in mr tran was a known gang member and that in but that's not an issue on appeal what it is because it goes to the issue severance why now is it put my question is the evidence presented to the jury what evidence was presented to the jury of an antagonistic defense of the of mr chong saying mr tr evidence in front of the jury at least from your client side from mr johnson mr try and have this confession by mr john wright so he said look he did it all he said so but what was the evidence in front of the jury that your client was blaming the other guy and claiming he didn't do it the argument by not asking about the argument with the evidence evidence was excluded the evidence of trans gang affiliation was excluded from the trial that was  was no evidence in front of the jury that that letter about about one guy accusing the other yeah i just don't i don't think that you know the record i don't care whether it's relevant or not you may think it's not but then you're saying that the evidence that would have been presented was excluded is that your answer yes ok thank you so that's an easy answer the answer to my question is no but i but we had evidence that we should have been able to get in that we didn't wri this issue of the fact that the defendants both of them had the opportunity to cross examine deputy lee when he was actually on the stand at trial and neither of them during cross exam addressed the was such that the judge at that point should have granted the motion to suppress because his testimony indicated that his declaration was not accurate well that that that isn't true deput testifies consistently with his declaration he always says that he was ten to fifteen feet away when he saw the defendant transfer the bag and then he entered the cross so it's very clear he's not in the garage when he sees the  question about that raised what issue mr trond motion to suppress is based entirely as i read it is written motion is based entirely on the notion that he this is not a valid par search correct and you lost on that issue right did he ever raise the question of  mean not so not to the written motions no i mean not explicitly i guess the way the defense is saying that maybe it was implied because she because the defense counsel was arguing that adopt by reference mr johns arguments again i think it's defense it's defendant trans counsel who does say well the officers were i don't know exactly how she wants it but it's something like  property or or had to already have been on the property so it's kind of implied but it's really not very explicit it's not clear to me from reviewing this record how much evidence there was in he's on a driveway and he's ten to fifteen feet away from an open garage door i mean no as to exactly where he's standing the record doesn't say that but there's no evidence to contradict deputy  e testimony and his declaration and both of the defense neither the defendants both of with whom submitted a declaration in support of their motions to suppress neither of them  submit any evidence to the contrary on that fact and going back to the at the point at trial when they could have cross examined him but didn't judge wright says you know it appeared to me that you don't want to ask that final question as to where he was as to where deputy was he says i thought you were deliberately not asking those questions so that you would have this point to argue and so if there is any ambiguity in the record it's because the defendant themselves brought it on certainly defendant tran was there at the time he could have said something in his declaration but he doesn't going to direct you to the severance question first of all with respect to is preserved or not preserved the issue assuming for a moment that mr tran has preserved the issue for purposes of our consideration does it matter whether or not mr truong has has preserved it or not i mean in other words it's the court will address it and if severance the determination is that severance should have been granted if extra strong i mean it does matter because the district court should have had the opportunity to consider the question specific to defendant chong i mean obviously his defense his case is a different one than that of defendant trenton and the district doesn't necessarily follow that there would be prejudice to the second defendant were there other words we might well find conceivably find that there was prejudice to the defendant who preserved the issue but not necessarily pressures of the defendant who didn't yes that certainly although there was a suggestion i think on the first day of trial by mr charles counsel that he was considering presenting addressed defense he was right and he's white had that to take into consideration when deciding whether the defense is with conflict right right and the court initially decided well i should sever the trial for that reason and but then you know upon pressing chung's counsel chung's counsel admitted that he didn't have any evidence of immediacy of an immediate threat that the ninth circuit requires in order to put on a dress to feel is it is it the government's position that had there been a proffer of a valid arrest defense that he wanted to argue to the jury th would have been the appropriate ruling but that he voluntarily gave up on the dress defense i i i certainly think there would have been a much stronger case for  have fleshed out a little bit by asking for some sort of proffer before making a ruling in a case that suggests that it should be tried together but that issue was never really fleshed out well it was discussed during that pretrial hearing and and you know chunks counsel it it's at that point that he doesn't have enough to bring addressed defense and then he asked to argue the fact of gang membership sort of generally as a i don't know kind of cultural implied threat which of course is just a way of him trying to get around the actual requirements of putting on a dress defense can i ask you a procedural question here i know that mr truong renewed his motion to that's correct so on the severance issue again yes russ not being in the equation as counsel points out th correct right right and i think your honor said that during the other counsel's argument which is that under the fear oh it's simply not enough to simply have antagonistic defenses there has to be something else there has to be evidence that  was only admissible against one defendant or evidence that was erroneous lee admitted at trial like there was in mayfield and i do want to distinguish the facts of this case versus zero for example or two di which is in those cases you kind of have this locked room situation where you know there's a box of drugs or there's a stab victim and each defendant says oh the other one did it and nobody really knows what happened this is not that case i mean we had a wiretap we had defendant tran on that wiretap talking about distributing drugs we have surveillance indicating he was distributing drugs from chong's house and then we have this recorded recording where defendant tran yells to defend hate make sure to take responsibility by yourself as one person all right and then immediately after that defendant tran signs it written confession so we actually know the roles of everyone in this particular  know how the conspiracy worked it's not like it's a fear oh where there's a box and everyone says the box isn't mine you know there's no evidence of who knew what was inside the box so this is a much these facts are much better than that in appeared and i'm concerned about that because even though the mr there was no motion that mr chang had pending as i understand that that was the disc the point of the hearing and it was the district judge discusses mr truong the prospect of a continuance motion make some comments about how that will be viewed i mean it's been a troubling that these proceedings are going motion and making comments about how that party how that motion is going to be treated i understand the motional the movie wasn't made but isn't that kind of a critical moment when when your case is being discussed by the district judge in neither you nor your counsel are there  i mean i don't agree with that just because i mean there are certainly you know sentencing hearings when there's only one defendant made and the judge might make some kind of comment about well i don't know what the other did but at that moment it's about that defendant's case there is no doubt that at the moment this hearing takes place it is about both defendants cases because there's going to be a joint trial but he doesn't say anything of actual substance it's simply defendant chung and maybe make a motion for a continuance i don't know the record indicated council knew about the hearing it didn't come to it but that's a separate issue shouldn't the judge have said i only see counsel for one side here do let's get what's let's get on the phone and make sure what's going on here but i mean if it's a motion where only that will only one defendant has brought i mean there isn't really any reason for the other defendant if you don't think a motion by one defendant what if what if it's a motion to suppress the fruits of search if the search of the fruits of the search are suppressed they're not going to be introduced against the other defendant because he didn't show up at the hearing rather well you can have related cases before different judges where moses is one ca if this is one case that's true but i'm saying generally you don't have to have every i guess i'm going back against your argument that just because the motion came from one defended it couldn't possibly affect the rights of the other defendant well i think i'm saying had at the end of the day there really wasn't any prejudice and should have figured there but at the end of the day nothing there was no absolutes that was actually discussed as your argument that not that he didn't have a right to be there and should have been there  certainly it's better when all the defendants are there but the me to make sure i understand what happened at this this conference the motion wasn't ruled on right and the judge made some remarks about what  truong have a right to be there to say to the judge at that point wait a minute judge i've decided if i wind up if i do you're wrong about your presumption here i mean again a district judge can make comments about it another defendant during any of the other defendants hearings comments i got you might persuade me with your argument that your prejudice resulted i'm having more difficulty with your argument that this was all perfectly ok again i'm saying it certainly would have been better for both defendants to to have been there but but yes alternately there really wasn't any prejudice to defend anything further no thank you you thank  circumstances and tries to explain to the judge look he's on these officers already on the property the search is illegal the judge a couple times interruptions it doesn't matter because they can see from the street judges adopting the government's argument with respect to the curtilage the government even reiterate its argument on page one thirty four when you say counsel says that you mean counsel for your client yes so that's one twenty don't yes with respect to the education circumstance and tries to argue look they're already on the property judge cuts are up twice adopts the government's curtilage argument government reiterated it's kind of like argument one thirty four you got right judge he's got no so now let's get back to you renewed motion later on in the trial doesn't raise this again correct you reduce motion renewed motion for to suppress focuses only on the parole issue well the renewed said on my question is does your renewed motion raise it well i think what she's saying is instead look there are they're not just in the cartilage they're actually in the garage i understand what you say i'm asking you're answering a different seven to twenty eight i don't recall the exact language it's been i'll look at that if that's where it is or what but i think it's not that they're in the curtilage i think what the point is that that is they're actually in the garage to not just kind of let me ask the question a judge when was trying to ask before because we have a picture there of the driveway is right or right to the right on the street it's made with twenty four driveway that's pretty good estimate maybe twenty five thirty and not certainly not a long one and why can't and there's some indication not every officer said one in fact you were lying alone officer says we were so far away i'm not sure i well i could see so there's some indication in the record from which the judge can find that they weren't standing up next to the house at the time across the fence they came across front yard already curtilage there and then they came right up to the garage not that they took some circuitous route you have one person because you rely on it in a different context saying i'm not sure how well i could see because we were not that close there's one there's one guy who does the initial stakeout all by himself while the other the other deputies wait about a block away he's there for about three hours and he's at a distance watching the house it's not clear but it doesn't appear he's there when the other officer stormed the house  now i point out to one two ninety seven that the government cited where it's ten to fifteen feet distance what the deputy is saying is on ten to fifteen feet from mr tron not from the threshold to the garage so makes perfect sense he comes around the corner the oh try to be fast first of all just her words i meant answer to your question that you repeatedly asked me and i was an answer and i guess i answered it incorrectly there was actually evidence that mr shaw was being manipulated by mr tran in this case because there was the recording of him repeatedly joleen my client from a different squad car to take the fall for tickets and you've got a clean record i'll get you a lawyer and making statements to basically he was he was telling me to confess so there actually examination that there was no question that trent told sean to quote take the fall for quote the second quick thing i want to touch on is with respect to the district court's basis for reversing itself regarding severance it was because he  didn't want the government to have to try the case twice and the remedy was to exclude some of chung's evidence which was that tran was a gang member so what he did was he excluded the evidence that tran was a gang member and and then reversed himself on the issue of severance and just on that point i know you wrap it up into your severance argument but you don't make a separate argument since the judge abused his discretion in excluding that evidence to you know i think it's part of the service so no to the answer my question is no you don't know arguing it with respect to the issue of severance with respect to whether this was properly brought before the district court this court held in campbell vs rice in two thousand and one the purpose of the timely objection requirement is to put the trial court on notice the trial court was clearly on notice but briefly with respect to the issue that your honor raised regarding the the my client's nonappearance and not appearance of counsel at a at a critical stage when this as your own has pointed out is an is a critical stage we're talking about motion and eliminate right before trial that much like this my client may very well have wanted to join that motion but it's its structural air in the case that i cited in my opening brief with respect to not having counsel the critical stage is that structural error it's not subject to harmless error analysis well but what you know the district judge was faced with the prospect for the for the situation where the counsel had there's no question counsel was fully notified that that he was supposed to be there so it wasn't as if it was kept from him any and he blows the appearance so is what is the district judge supposed to do at that moment in time i think he puts it over and tries to find out why counsel isn't there an order you know  and finds him and any other number of things that the judge course that has consequences for the judges ability to manage the calendar i mean that's not a very very efficient process i'm not suggesting you're not right about that by the way but but at the at the beginning of this whole process it is mr chance counsel's failure it's not the court is given him notice and is prepared to proceed and he has made the decision one way or the other not to show up it is and received i mean presumably he's a he was on the c f and would have received an easy notice but i my recollection i could be wrong my recollection is that the courtroom deputy indicated that she hadn't been able to reach counsel have had a minute i could check but that's my recollection and that's even so they made an effort to try to get counsel to be present and couldn't even reach that counsel right if they know that he doesn't know about the hearing i think it's actually even worse because they could they certainly continue for we can keep trying to reach him then finally just with respect to the curtilage issue mr chang has adopted all of mr trans arguments with respect on the other side and i say because mr trent comes and says i have no possessory interest in this house at all it's not a good parole search as to me and the judge says you're right you've got no possessory interest and now he's worrying you now he's complaining about entry into the courage with respect to your client