good morning ben coleman from mr mayor what i plan to do unless the court has a different preferences take the issues in the order that they were briefed i'll probably mostly focus on the first and second issues before getting to those i just want to say one thing about the standard of review of the government concedes that we're talking about it in all those standard of review but they say in their brief that i guess the record should be sort of reviewed in a light most favorable to the government and i just want to refer the court to one case that i did cite in the briefs but not to this proposition and that's a boy scouts of america versus dale which is a fairly recent supreme court case and particular page six forty eight of the of that opinion the supreme court says that because this is a first amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact we obligated to independently review the factual record so i think really this court is looking at a completely independent review without the instead i'll start off with the first issue in his well respected treatise on criminal law professor  saying that this missile for outrageous government on this conduct is warranted where overreaching governmental inducement over last with concerns for first amendment freedoms such as when the government sends provocative orders into political organizations to suggest the commission of somewhat of a blank slate with respect to this court's precedent but it's our position that that's what occurred in this particular case the district court found that nambla is an organization protected by the first amendment that farming was in accord with the second circuit opinion and the government does not challenge that finding on appeal so we're talking about a political organization that's protected by the first amendment it's our position that what the government did in this case is the senate undercover agent into that political organization that undercover agents successfully suggested that the travel agency called green to go on the travel that occurred a month before the conference the web site was not a criminal enterprise was it was a commercial it is some sort absolutely but what it shows was to go into this organization and suggest that the take part in this particular criminal that this wasn't just something that occurred on the spur of the moment during the conference the f b i had a preconceived plan designed at least a month before the conference position that first of all from a factual perspective that the government the f b i was investigating them if you look at every critical stage of the investigation there's over three year investigation this case i think the facts are clear that the government is investigating now  start off at the beginning in two thousand and one when the asian first joined now by law he wasn't investing any individual in that law he claimed he was he joined to help his investigation in some other to some other travel agen investigating any member of the emblem for two years from two thousand and one to two thousand and three he stayed as a member of nambla yet the government he was investigating any particular individual at all does that matter when you have an organization that faces two or three hundred in this case the as far as individuals are under investigation the government didn't name any individual at all until two thousand and three the first individual that was ever mentioned as potentially being under investigation was an individual by the name of joseph power now the only information that the government had about power in two thousand and three was that he had been paroled in one thousand nine hundred for almost ten years earlier i don't know when the actual date of conviction was it's not clear from the record because of the commission could have been fifteen twenty years old but he was paroled almost ten years earlier the government had no indication  power was engaging currently engaging in any criminal activity and then when the engine infiltrated the two thousand and three conference he specifically testified that he interacted with power and power did not indicate at all that he was engaging in criminal activity in as far as one of  entail trait and then at some point that they learn of something and then they contact the authorities and say well so and so in nambla said that there you know that he's going to thailand or you know this that the other let me a different situation than this i think so if they want working with the f b i before i mean obviously at the point that if the f b i continued to use that person with an operative then there would be a different argument but private citizens could do this if they chose conference specifically said this is the most paranoid group of people ever been around we should form a travel group i mean i'm careful but let's go he said that when the f b i with their phony web site contacted the members and said here's the web site we should go on a trip to mexico and they planned everything i mean they instigated the criminal activity and i guess the point is with respect to the first that's your contention what they did literally was to set up the only travel agency in effect for website at least right and then he told the then he told the members this is the website it'll mean a trip to mexico it's not in mexico for us it costs like six hundred votes or something like that you'll get four days and you know incredible tries to get four days and four nights and the boys they takes care of everything it takes care of the food the lodging the transportation and special friends and clothes which i think we all know what he was trying to say there so that everything was taken care of through would have been taken care of through this this family travel the on the use of undercover informants to go into first amendment organizations one is that the investigation has to be conducted in good faith and the second is that the investigation into the undercover agent has to scrupulously adhere to the scope of the invitation he looks he sees whether people are engaging in criminal activity and if he sees a criminal activity he can make an arrest right at this point there's not i'm finding legal authority that there be reasonable suspicion right correct and so the government's position is that that's not required but secondarily their state even if it were they have it here right now here is your position is it is required it should be required on that the district court agreed with the government that no suspicion was required so if the court agrees with me that i believe the standard is probably cause but whether it's probable cause or reasonable suspicion whichever one the court determines if you if you agree with me i would suggest  most appropriate thing would be renamed back to the district court to make a finding in the first instance as to whether there was adequate cause to infiltrate the organization so i just want to make sure that that was clear for the court so it's ignoring your honour's and carry on the after united states in this case the district court correctly found that the f b i was investigating individuals who attended the nambla conventions it started off as mr coleman's pointed out to the court with an agent who simply joins the now organization he joined it on a publicly available website he sent a money order to a post office box he joined he received solicitations from nambla he received invitations from nambla to correspond with members who are in prison he simply behaved as any other nambla member would and he joined as he testified before the district court has and is replete in the record here because he was involved in another war and in another investigation that investigation didn't pan out for whatever reason be it legal i think you know i guess from the standpoint of you know the nazis used to be everyone's worst group now i think of a great could be less popular it would be nambla and so have you know how do you balance in terms of protecting the first amendment rights of a group that is i mean so unpopular first of all your honor in this case because he they had no restrictions on who could join so he certainly could and in terms i don't think the court needs to decide you don't have to be accepted now all you had to do was send in you thirty five dollars and that's what happened here and that's what happened for approximately two years and then he was invited to the convention in two thousand and three and there were some indications that this individual joe power of be there not only was he a registered sex offender but he was known to the undercover agent mr hammer because you'd actually been sued by a family in connection with his affiliation with nambla because a young boy been killed that was the curley family and so not only was he associated with that he attended the nambla meeting knowing that there would be somebody there of interest to the f b i and in that other people while he was there he also learned something else it is true that the district court accepted the proposition and it's in published decisions from other courts that nambla considers itself a first amendment protected organization however what the agent did learn at that two thousand and three convention which is also on the record is that there is no discussion of politics in the end of convention they discuss privacy they discuss not being caught they discuss what to do if the f b i comes to your door he also learned at that two thousand and three convention that not during the meetings not during the meetings but during the breaks and during the meet and greets that take place this is when people talk about illegal activity with children you have to be invited to correcting and so there was at least one target there now as as a target perhaps mr power didn't pan out but there were other individuals there who discussed their illegal activities with children among them being jeffrey devor that became a  subject of much debate in the motions later on before the district court but at the time that mr hammer that laughed the two thousand and three convention assuming for the sake again he had individuals he had already identified individuals who had talked their illegal activity he then goes back to los angeles he gets transferred to stand the eggo two thousand and four rolls around and he gets again invited to the two thousand and four convention mr coleman is correct there was a website established it was called the green go on a travel agency all of us was a website that's all it was and the record will show your honour's that at no time was that website was a travel agency anything mentioned during the course of the two thousand and four now will be it only it was dealt with because it was under construction or whatever the only time it was even referred to mr mayor and co defendants in this case was well after the meeting when the actual discussion of going to mexico to have sex with children was being discussed so it really wasn't a situation where the agent was going in to forward the idea of the travel agency he didn't that's the fa he just did it is reasonable for reasonable suspicion required at any point have to now no your honor but even if it was required it was here ok and that is something what is your theory on the reason mostly based on the that he's already been in touch with members of his agency now for three years he has gone to one conference which inside the meeting says we don't like illegal activity this is a political organization and then he finds out they don't do any political activity all the members outside talk about having sex with little boys which is the illegal in all fifty states so he has reasonable suspicion in going to that two thousand and four convention a that he would see individuals again who would be discussing illegal activity and indeed that's exactly what happened reasonable suspicion is not the standard but it was here nonetheless so it's not based entirely  mr power it's based on the observations made in these breaks during the absolutely absolutely and that's where all these things were discus the participants were more than eager to come out in san diego on what they believed to be a trip to mexico and judges gagnon of scanlan is also correct there was no trip to mexico the arrest took place outside of their hotel room so it was not the instigation of some horrible crime in the republic of mexico it was simply providing individuals who were already created supposed to commit a crime with the opportunity come to san diego and do it if if if the court concludes other number one that no suspicion was required or number two so are you saying that just to send the money in and from that something that anyone can do that requires reasonable suspicio i don't think the court has to answer that question because i think in filtering the conferences they have you asked me to answer and i don't think you'd like my answer so that's their even assuming that the suspicion wasn't there it was at least needed when the infiltrated the conferences when the winning with undercover video and audio equipment when the video everything that everybody was saying well he took down the personal information of all the members and sent him to the f b i throughout the country naming them as persons of interest you should be looking for someone so he says he's this years old he looks like this this those facts in a second but if the district court cannot make a finding as to that so high i think this preferred course would be the same the case back to the district court to make a finding as to whether there was reasonable suspicion or probable cause which other standard the court were  nine years earlier that's the only only only knowledge he had of any criminal activity on his part he didn't have any locals the conviction well they have a conviction which we don't know whether the conviction was in seventy eight or eighty four when it was but when i was told in ninety four nine years  organisation the entire organization just because they have suspicion as to one individual member of the organisation it's like saying to the government going to a mosque or a islamic earth place of worship because they have me believe that one member of their church is involved in some type of activity it's our position that simply having suspicion as to one member which we don't think they had in this case anyhow does not authorize the government to infiltrate an entire organization and that was discussed in one of a terrorist can take that next step and they instigate the criminal activity that's our position that under law fobbed and under judge sauls opinion now you are will sets a good faith standard that the answer is no and in this case the instigator the criminal activity  e mail to the members saying i've got this website which is travel agency it's six hundred eight hundred bucks or whatever it is you go down to mexico the boys or including the food is included the transportation is included the lodgings included the government instigate this criminal activity there's just no getting around it and they created the start of clearing that website a month before the convention which goes to show that this was their plan this was something that came up after the fact ahead of time they were targeting them what they were targeting the members an wanted to instigate this criminal activity and the facts are clear as to that so those are really the two i think legal issues that the court needs to struggle with is number one what do you think government did it interfere with what would be the first amendment  or you know to eliminate the under age if you can send sound right requirement which is something that you can do i mean if you want to you know that you can actively i mean right it but you know if they're if they had written that there that our purpose is to have sex with young boys in violation of the law that wouldn't have the same person and protection so what did the government do to enter membership confidential he serves social sleep recorded the entire proceedings the entire the entire meetings and distributed names throughout the country he wrote policy will privacy policy for this committee you draft a memorandum for the privacy committee to try to establish the privacy agenda for for the committee on he made inappropriate remarks at the at the two thousand and four conference suggesting that he was the head of nam was international prostitution ring and was reprimanded for making those types of comments on m e e became a part of this organization he attempted to get involved somehow in the direction of the organization he says to the privacy community and the bottom line is the number one agency i mean i think any political organization if there's no basis to believe or not equal basis to believe that they're engaged in any criminal activity we should be free from having undercover agents infiltrate and video what they're doing collect information about the members it's like  membership list which the supreme court has held requires probable cause and gives them and that's what he was doing here he was collecting information about everybody in attendance he was running down the background information i mean that's a good thing the government says that they were investigating power well  go to the two thousand and three conference the video everything going right now in the personal information of everybody in attendance and then send that information out to f b i field offices throughout the country and then the stomach investigating one individual that sounds like you're collecting a membership list  organization and making these people targets for the f b i around the