oral arguments remotely this morning before we begin let me make a few more comments about our format today just as if you were in the elgin courthouse you'll be given your regular allotted time when you are not arguing as our clerkship captain pointed out please mute your phone each party will have fifteen minutes for your main argument we'll have five minutes for rebuttal as you heard the clerk of the court jeff kaplan will operate a timer signal mr kaplan will let you know by the signal when there are five minutes remaining in your main argument the purpose of the five minutes signal is to ensure that there will be time for questions from our panel today as is our practice in the nd district we've all read the briefs so we are familiar with the facts what will be different today is that we will not be interrupting your arguments with questions as we usually do conducting oral arguments remotely makes it awkward to proceed in that manner we will save our questions until you complete your argument keep in mind that you are not required to use all of your time certainly if you complete your argument before the signal invited us to ask questions at that time we remind you that you no one except the clerk of the court is permitted to record the argument a couple of additional points people's exhibit number appeal whether defendant's unconditional unqualified consent to search your phone combined with the various comments that police would find the same stuff on my phone as honor deceased husband joe's phone waived her marital privilege as to the incriminating evidence contained on joe's phone and whether given the details of a joint criminal conspiracy that are now in evidence and exceptions to the marital communication privilege applied unlike the last two appeals we now have the taxes that are issue fully before this court there is no longer any question that defendant and joe exchanged potentially incriminating tax after multiple changes in position defendant now knowledge is that she voluntarily consented to a search of a phone but our use that was limited was our in her phone at the time she signed the consent form defendant still appears are you that any waiver the privilege must be specific this court has disagreed finding that a holder of privilege may waive it explicitly or implicitly even if that waiver was not necessarily smart this court noted that defendant conceded that a voluntary revelation by the holder of a privilege of communication is a waiver of that privilege and held that the people had made a prime facia case of waiver regardless this court remanded this matter specifically to determine the then challenge position of whether defendant's consent was voluntary while the trial court failed to address that issue the fact thousand and fifteen at the exact time shown in people's exhibit for the extraction report of joe's phone people agree that the tax between defendant joe's phone contained in people's exhibit one are not on  limited extract report from defendant's phone however it's relevant that twelve other attacks which were made between defendant and a phone that is not joe's are shown in both the extraction reports of defendants phone as well as on her phone records from that date strongly suggests the defendant intentionally deleted only the tax between her and joe knowing they were arguably incriminating the evidence now demonstrates that when police asked defendant about a message she sent to jail regarding hiding the money found instead an important part i mean if you've got joe's phone then you know what the messages are between us and two you're just going to find the same stuff on my phone that you're going to find and just phone so i don't give a flying f anymore my life is over and perhaps most importantly defendant stated i mean it doesn't matter if i delete anything off the phone you're still able to pull it so let's not treat me like i'm a stupid idiot these comments demonstrate that the spite the actual cursory search a defendant's phone defendant was fully aware that a search of a phone could have found the deleted tax and therefore defendants waiver was unconditional and unqualified people have repeatedly are you the only reason defendants phone at the time of consent may not be a mirror image of the tax or on joe's phone it's because defendant intentionally deleted those are your billy incriminating tax the fact the defendant did so establishes a consciousness of guilt no defendant should be rewarded because they destroyed relevant evidence because defendant has failed to rebut the prime official case their consent was voluntary and because her consent combined with her comments and actions was unconditional and has any questions to people rely on the arguments contained in the briefs for their other exceptions now with the evidence of a joint criminal enterprise this fully before this court for the st time the people urges court to reconsider the decision and people versus crank call and find a joint criminal enterprise exception to the statute rationale for the joint criminal enterprise exception is compelling and it appears that every court that has analyzed the exception has adopted it rationale is that while marital communications are generally protected in order to encourage the sharing of confidence between spouses the role of spouses is merely incidental the communications involve the joint committee activity and the interests of justice outweighs the goal of fostering marital harmony people argue that while all common law privilege is appropriately protect important confidential communications that relate back in time the privileges do not extend to communications and further ends of ongoing our future criminal activity and most privileges in courage if not require disclosure relating to future criminal actions those in gray's engaged in criminal activity should not be able to shield their actions under the guise of activities or somehow and further than some of marital harmony in this case the communications to you defending her husband appeared to relate to a lengthy and pervasive criminal enterprises still thousands if not tens of thousands of dollars from an organization which both defendant and joe owed a fiduciary duty this court should find that there is a joint criminal conspiracy exception to the privilege as well as the other exceptions that the people referred to in their briefs finally in response to this court order of the party should be prepared in the scots the law of the case doctrine people note that the doctrine only applies to find going to case as long as the facts remain the same accordingly the doctrine applies to this court's previous holding that the people have made a private face a case that defendants unequivocal full consent to the search of her phone amounted to a waiver  marital communication privilege defendant chose not to rebut this finding below by presenting any relevant evidence regarding her consent on remand instead merely relying on the fact that the extract of her phone did not contain the text messages and the issue because the facts remain the same this finding is controlled by the doctrine the people next assert that this court's determinations relating to the exceptions to the communication privilege are not governed by the law the case stopped on because the facts do not remain the same in this iteration of the appeal hearing oral previous oral argument in this matter this court correctly suggested that a decision to whether various exceptions to the privilege would apply in this matter could not be made in a vacuum absent a record that established the actual contents of the challenge communications because the facts do not remain the same as before namely the evidence this case now are usually demonstrates that defendant and joe were engaged in joint criminal enterprise this court can and should reconsider the merits of the exceptions to the marital communications privilege your honor is that's the end of my prepared argument and i am ready and open to any questions that your honors have very well thank you mr longdon hutson your questions so circumstances where defendant could say someone comes to the house and they say can we search yes you can search everything except under the mattress and in that case the police could arguably search everything except under the mattress and then they can choose to remain there and attempt to get a warrant to search everywhere including under the mattress but yes if the defendant would attempt to limits but that that limitation cannot be her own mind and as we've suggested in this case she seemed to suggest that it was not in her mind defendant fully believed that the people could obtain even deleted portions of her phone and there is nothing that suggests otherwise period she is arguing that because the incriminating messages were not found on the inspection report from a b she did not in could not have waived her privilege as to any communication between her husband and her what's your reaction to that argument reaction and as we put in the briefest it's kind of nonsensical of course she could have waived it she might not without a warrant may have may have hinted like you know it would be great if if similar to tom brady the phone is lost but of course she could consent i mean the fact that a cursory extraction of the phone did not show that has no relation to whether she could or could not happen of course she could have the question before this court is did she think it was real and that's all i have at this time thank you justice brennan your question i have a question regarding the law the case doctrine once very clear that it's not going to that the appellate court is not going to adopt that exception and they point out that the legislature is aware that that exception has not suggesting that that or because i don't know that we would look at the transcript and use that as the base to suggest that we didn't say what in fact we did say in the written opinion one however again the law of the case doctrine only applies that the facts remain the same but people are suggesting that in this case the facts do not remain the same they are different and this court should when they were addressing that issue they presumed that there were incriminating facts so even without the details of the text the principle seems to me to have been very directly  addressed again i'm not sure that we necessarily again i can't speak for the court but but the opinion doesn't necessarily state that it did assume that there were attacks i mean technically we knew that there was no dispute at the time what the text sad but it wasn't in front of the court so i the people cannot say that the court did specifically consider those facts if indeed it did that the law of the case dr arguably would apply but we're arguing and people suggest that at least arguably did not the people also acknowledge that this court suggested that the legislature is presumed to be aware of decisions interpretation of a statute and you have acted or presumably in this case not affected with knowledge of of these decisions however it is clear in this case that while the legislature has not made a change in america i mean a case in privilege based on crank will however crank will do not interpret the statute will merely stated no court and eleanor has found an exception to the statu that the people assert was not enough to put them on notice that there was an issue in each of the cases cited in the people's brief it does appear that the legislatures in those cases and both the federal and state opinions the legislators did not make the changes in till after the court's pointed out that this was an issue and made a finding that the exception should apply only then the legislatures make those changes so well generally it is correct that by policy the legislature and and probably should be the one to make changes the courts can and in many instances have been the impetus to the legislature to to indeed siddur those potential changes all right is that is that it justice brennan thank you mr london you are quite correct the law the case doctrine with respect to changing change facts which is exactly what mr mor i anticipate will argue but don't the facts presented have to be so different as to require a different interpretation and in this case we had a proper from the state in its brief and in the arguments in the trial court before us and when it was one where the state asserted that the defendant acted in concert with her husband to take the money from the explorer program what is the difference in the facts that we have more and more of an understanding but we certainly had facts before us that showed a  criminal enterprise and we refused to adopt that exception what's your response to that response ron or is that while there was a proffer there there was not the facts the facts of what the statements were the facts that there were statements and that's exactly what the statements were we believe is different enough for this court to at least reconsider the various exceptions again we have knowledge that that the court  you know made the findings that they made we would ask the court to reconsider we do believe that the facts are significantly different in that the court can now consider siddur the specifics however as we stated in our briefs we also did need to include all of the exceptions in case we don't win and we need to preserve those for any petition for leave to appeal of course our major  and main argument still is that the exceptions at least are you billy in this case might be irrelevant because we believe this court can and should find that defendant waived her privilege given thank you believe that the exceptions would apply in this case but yes the the law of the case doctrine is exactly as you've s doctrine it is our position that the law of the case doctrine applies to the instant appeal parties should be and are barred from really beginning issues decided in the previous appeal last of course one of the two exceptions applies in the instant appeal regarding the issues of i'm going to talk about three of them now testimonial versus communication privilege the rd party exception and the joint criminal enterprise exception he's issues were squarely resolved in the st appeal no new relevant information exist as to the court's holding on these three issues either exception applies to any of these issues and therefore it is the defense position that the state is barred from these three issues in the ensuing appeal i'm going to leave it at that for those three issues and i certainly will it would entertain any questions on those three issues after my initial argument regarding the issue of waiver of the privilege this court held in the previous appeal going to what's won at paragraph fifty that the state has by its representations to the trial court and by the a primer fashion case of waiver if this holding applies only the text messages proven to be present on defendant's phone at the time of the consen then it is the feds position that the law of the case doctrine applies and the state is barred from real live again in this issue in the instant appeal the reason for that is because at the time g she consented to a search of her phone this extraction reports showed how church to the state's representations to discord and to the trial court that the text messages on defendant were not identical to presumably i merely to resolve factual issues regarding the voluntariness of defendant's consent after receiving this extraction reports on defendant's phone which was contrary to not believed to be in existence at the time of going to its one to abandon her claim that the consent was not voluntary rather defendant filed the fine it embraced this court's holding the state had made a prime a fashion case a waiver of the contents of her phone defendant admitted that she had waived her privilege as to her communications with her husband her phone and filed an amended motion in limine and seeking to bar only the tax between the fund it and her husband found on his phone but not on her phone therefore assuming when you look at paragraph fifty that that holding of weight wise only to the contents of her phone than the law of the case doctrine clearly applies and the state is barred from reality gating that but if the holder of a prime a fashion case of waiver applied somehow to the county going with his phone then a different analysis is required regarding the law the presenting evidence to rebut this prime a fashion case of waiver by its very nature primer fashion unquote case of waiver merely suggests that the state has presented enough evidence sufficient for preliminary showing of waiver and presents a reportable inference that prime a fashion holding specifically allows and in fact invites the defendant to present evidence to the trial court to refute this rebut waiver in general terms in a st appeal there's a holding that one party has made a prime a fashion case as to a particular it's our position that the law of the case doctrine does not and cannot bar the other party from presenting evidence  waived the privilege between her and lieutenant going with and lieutenant plan with his phone the st was of course the extraction report which was ridge which refuted the state's position that the communications were would be the same on both and the other evidence were the statements during reason that that is significant and so significant is to refute the state's position that because she said well you're going to find the same thing on his phone that you're going to find on my phone even though she really didn't have statement that the state wants to get into this case about hiding the money by categorically denying it she did not implicitly way for privilege as to that statement difference and opposite from the simpson case where a defendant acknowledged in the presence of rd parties making a statement through her to his wife which otherwise would have been privileged anyway from the prime of fashion if this court disagrees and believes that the law the case doctrine applies to a prime a fashion case of waiver as to the communication on the tonic when it was his phone then it is a defense position exception applies i want to make it clear that i'm not saying that this court's holding or reasoning in going to which one was in any way flawed or palpably erroneous it's our  position that that the court's ruling in that case was palpably erroneous because it was not it was based upon false assumptions and did not have the new ends which was tendered immediately after the holding in going to its one and that extraction report conclusively contradicted representations to the trial court and to this court that the contents of both phones would be identical was obtained then the initial extraction report somehow limits the waiver of the marital privilege i'm sorry i'm sorry to say that one more time money a topic did come up correct correct he then made representations that they would find the same information on her phone as they would find and shows you know what the messages are between us she said and finally she acknowledges that she knew a search of the phone could recover deleted messages that she signed a consent to search the cell phone authorizing complete search you did that after consultation i think of the money and three different ways she was asked she did not add those three times she said she never made that statement that she never would have made that statement well i mean she did  the consent for a complete search to chain and she not she signed the consent for a complete search on her phone what about the fact that she learned to think that she knew or at least represented the information of her phone would be the expertise to a kind what type of extraction reported to be needed to get what information from a phone but i certainly don't think that that amounts to an implicit waiver of her privilege of what his phone i think an implicit waiver of a privilege is like we see in simpson where someone says well you know that defendant didn't clearly wait explicitly waive his privilege but he acknowledged making a statement parties which was implicit waiver of the privilege merson we have a defendant who stood silent as the wife espoused testified as to matters that were that would have been privileged and that was implicit waiver of the privilege i fail to see the logic of why just because she believed in her hand that her phone may have been the same stuff that was on his phone why that amounts to her waiving her privilege as to what's on his  right that's all i have on at this time thank you spread it all following up on that if i may what's in her heart particularly relevant as it relates to what she intended in terms did show was a mirror image i know it didn't but let's assume it is your position that there still was not a marital waiver because that wasn't specifically addressed putting aside the law the case for a moment your your argument actually is that she didn't make any kind of a waiver as it relates to marital privilege would that be fair i mean if you go to  there no that's not what i'm saying i'm actually saying that if it was true if the extraction report showed that it was the mirror image and if their tracks report on her phone showed this statement that's about about hiding the money even if she denied it if it was on her phone which she waved the men the net would be a waiver of her privilege and i'm not saying that there was ok then let me ask you this now that now that you say that here's my question believed based upon her comments to the officers that the lead attack could be recovered we will never know because they didn't do the right analysis of the phone but she believed that and doesn't her belief as it relates to that and her presumed recollection that of course the conversation that occurred doesn't that speak to a complete waiver as it relates to whatever is on joe's phone because s through the deleted text could be recovered i do not believe that that constitutes a waiver i mean if that's the case then why even take her phone i mean if she's saying if she's saying it's the same as  on my phone is on his phone and they wouldn't even need to take her from that could say oh own is a waiver of everything that's on his phone i think the most important the most important response i had to that question is that her statements about you're going to find the same thing on my phone is her fault it was her belief it certainly was in her head because she said it but as to the statement specifically i don't have the money she categorically denied making the statements and when she gives up when she signs a statement on a set i mean i phone jacks report on her phone does not show that statement coupled with the fact that she weighed what was on her phone at that time can you tell us where and when to which one we said that i think what i was doing was i was saying i think i was saying in paragraph fifty if you look it says and i framed my argument justice bearcat in terms of i think there may be two possible possibilities but my argument would be in paragraph fifty where there's the holding i'm there's a sense of says according to the documents review defendant knew court and going with i cut you off because we're running short on time i i get your i get your picture you're saying you were interpreted correct not not specifically a quote from our disposition right o that we had from the record was that the police did not do any search at all and as the state explained the reason the there is not a mirror image and as a court of certain arjuna's because someone credit messages that does not affect the waiver does it well how does that affect the waiver that somebody whether it was the defendant or somebody else took the phone and deleted those incriminating messages how does that affect the waiver that she made during her communication with the police with the police officers agent the f b i agent and a police officer jumps well what i would say about to leave the message is if the position is that it's clear that she that she did or someone did delete them out messages let's assume that at some point she did delete those messages we don't know when she deleted them but i think that strengthens the case of where you are because if somebody is going to party forget the forget the catch just a built this you were talking about waiver marital privilege and if and and somebody that they don't want certain messages by other people want to protect those messages from to be viewed from other people than that person would and has the right to delete those messages from the cell phone this was a their conversation on october th of two thousand and fifteen included discussions about intimate details of her private life with joe i mean i won't we won't go into all those but intimate details and she also discussed for them quote using the explorer program as a source of loans money for her and joe to pay for expenses d j s plane ticket those comments all of that taken together the very revealing conversation about her life with joel and indication that she was opening up to law enforcement and aren't those actions inconsistent with her assertion now that she was holding on to marital privilege when in fact she openly discussed conversations about everything in her life including joe's faults and using the explorer program as a source of funds to pay for their personal expenses how is that not consistent with her signing the consent form and saying you're going to say find the same stuff on my phone as you haven't just don't see it where is the where is the the change in evidence that would support us departing from the law the case dr and what we now have the full conversation which is very open late back the police officers were very polite to her where's the evidence that indicates we should depart from the law the case d  i disagree with the fact that if the since she was during her interview and because she was honest about certain things doesn't mean that she complies privilege as to everything she up and actually st person that even suggested that there was improper use of the explorer funds when she opened up and said they were writing checks for personal expenses that inconsistent with rd claim of waiver isn it i don't think that she ever said that they were writing checks i mean what she said was that joe that it would come to her attention that joe had spent the money and she would he would go to her and then she'd write a check back into the fund so that being said i don't want to get back to this waiver i go and explicit versus implicit never thing else i go back to her statement where she categor it under simpson i fail to see under any circumstances how is very statement how she could have waived her privilege as to that statement she did say did she not and i'm quoting here yeah i mean if you've got jill's phone and all that stuff off there then you know what messages are between us that is exposing communications between her and john and she knew that the police had already taken  and done a search on joe's phone correct yes and then and then in the same interview she get categorically denied making a statement so i don't know how to read this statement refer was made after she was confronted with that comment she still acknowledged you have but obviously we're going to talk about what's in her mind you're saying well in her mind she thought it would be the same but also in her mind she never made that statement so there would be no reason to that statement would be on his phone he denied making the statement be clear the people did not are you that defendant's phone would have the mirror image said that it should unless defendant intentionally deleted the criminal acts from her phone of course she wants to protect the messages that's not the issue the issue is whether her consent and the comment she made relating to it waived her marital privilege nothing in defendant's consent form or her comments state that the consent was limited to content on defendant's phone while defense counsel is now making that argument defendant never did self serving statements regarding her denial that she made the statement about hiding the money is has no relevance in essence she lied in denying it we know she made that statement that does not mean she didn't waive it if again the defendant police a bribe in a defendant's house and say they want to search it and they have reason to believe that the defendant's dealing cocaine if the defendant says go ahead search my house you won't find the cocaine and they find it that denial has no relevance the evidence demonstrates she did make the statements as just as brennan's question suggests that what matters is defendant's intent at the time of the consent not her current argument it might be implicit possibly not explicit but the fact that she's currently maintaining her innocence information that was on joe's phone lacks any relevance to the issue of whether or not defendant waive the privilege the fact that it doesn't contain the same was twofold one defendant clearly deleted those incriminating tax she did not delete other tax and indeed there i are dental tax from between her and joe on the phone both before and after these incriminating tax more importantly lake county never had possession of the phone the feds i think it may have been the only state police that did the actual they could have done a more in depth fraction they chose not to i'm not happy the people aren't happy like counties not happy that it wasn't done however that doesn't do away with the fact that  clearly demonstrated that it was her understanding that the police would be able to look at the deleted portions of her phone and her intent at least