good morning amy cleary on behalf of robert kimmel i'd like to reserve four minutes for my rebuttal keep track of my time i'd like to focus this morning on the issues that require this jury issue with regard to the seating of the alternate jurors the disclosure of this confidential informant in this case this court is well aware of  month before trial when defense counsel requested that the confidential informant be disclose the parties brief the issue the district court gave very short shrift to the defense counsel's request for it and we can tell by the  that the district court did not consider this court's decision inspirers which says as long as the defense makes a minimal threshold showing that there is at least  requisite showing that it could be helpful to a possible defense then the district court must and that's what speier says must have a in camera hearing to determine if that was going to be helpful to a defense can i ask you just to give me the explanation for why in light of what your client's defense was going to be why knowing the identity of the tipster would have helped what's the how increase the likelihood that his defense would succeed if he knew that he's absolutely so the storage said and this case forms the basis of counts five through eight the confidential informant in this case gave information to detect a play on may thirtieth that storage shed was not searched until june third now this court has used in cases like this the information given at trial to go back and look at the evidence to see you know we did it just to court handle it correctly so this court can now look at the trial evidence to see what we now know ok so i think it's fair and so your client's defense was that it was either i know that's but so that's his defense is that it wasn't my stuff it was either of them and they both had access correct right ok so let's say that the tipster was one of the two of them if he had known that how does that help his defense  so if it was either of those two women those women could have a put the drugs more drugs into the storage facility which would have impacted count seven and eight because count seven required that the jury find that he had more than fifty grams of methamphetamine which increased the sentencing exposure it also required  the count eight mandatory minimum sentencing which cat carried the sixty months consecutive to the rest of the sentencing so it impacts count seven and eight ok so why does the disclosure of the one thing to argue your honor that these other people could have but he was entitled to actually have the assistance of that at trial and to bring in those people and to subpoena those people and to have that presented to the jury yes his defense attorneys can make those arguments but if he is able to subpoena those people in it to show the jury that yes these people gave information because they're working up charges yes these people have their own charges yes these people did something to help themselves out that's different that stronger except for the fact that they see i said i don't know where the storage unit is we don't know that that's what she said your honor what detective plake said was well what one hundred twenty stores facilities in the area right went to one and said at that one if it's not here give me the storage facility that's related to this one so whoever does see i was sent  plate to that one and gave him enough information to know that whatever storage facility it was it was related that's not hit and miss as the government has argued that's not you know doing investigation and canvassing the c i and also said also set a trial the cia knew what was in that storage facility this isn't hit and miss the cia knew and detective played assumed that the c i had been in that facility but this is all information that we shouldn't have been learning at trial the harm that would have been caused by giving mr kimmel this information through an in camera hearing was zero this was not things that that's not really the test well actually your honor when mr kimmel presents information that it was relevant to at least one defends this court said there is practically no harm in going through the in camera process i know i don't disagree with you on that i'm just i'm just wondering whether it just doesn't seem to affect the defense as i read this case that they used to fast was going to be the same regardless of whether or not see i was identified and presuming that the c i was one of these two people the test though you're on is not whether it would have affected the defense the test is is it relevant to a defense and we've demonstrated both at the pretrial stage and now on appeal that it would have been relevant if the court doesn't find that it would have been meritorious that's a different question is it relevant it's not whether it have been successful but not the question relevant i'm with you but i'm just asking if let's let's assume because best case scenario for you it's either amanda or kelly right because that's the most tough because if it's somebody else then it really is  irrelevant so let's assume it's one of those two he or someone that had access to it like kelly ok but that's true those are the right people we know of according your own client career had access so he puts that evidence before the jury the jury is fully aware that it could have been one of these two women because they had access and one of them i think even had the code so how does it strengthen the inference that it was in fact one of those two that the drugs belongs to one of those two women if they are the ones who took the police off just what's the chain of inference is that helps the jury get to that conclusion the chain of interferences is mr kimmel testified that i'm a drug user i use this amount of meth this is what i do make neven comes in and says i did tip off the police now defense counsel can say look you heard my client he admitted to this this is what his story is now you hear mcnabb and say this or you wouldn't believe someone that is working off charges who has this problem who did these things we've put her in front of you she has a motive she has received benefits she's the one that only talked to the that's fine but when you have an actual defense as a defendant frankly that's rare it's really rare in your honor when you have when you can pull in someone as a defendant to have an actual case in chief that you can pull in and you can say not only did my did my client testify but now we know who did it we can say we have an actual person who came in and had benefits received and we can name that person and we have this surveillance time of or this four day period of time where no one watched that storage facility even though the police knew it and were suspicious of it and no one watched it and the access records show that somebody using your client's code did in fact enter between those dates correct and no one watches it would only be kelly right she was  the thing is every case is different so the district court should have looked at this not like other cases should have looked at very specifically at this case can i please go ahead and talk briefly about the franks issue everything's very laid out in the in the brief for what i think the district court's primary error was when your assessing the misrepresentation omissions it's not just enough to say let's throw all this out and just focus on the dog the dog why not because that alone gives rise to probable cause it doesn't matter who owns the you know at that point it just gives rise well i know you have maybe you know one thing but putting out ok but and that but the thing is you can't do that when there's a franks issue because it also required the district court to put in all the material missions but it doesn't matter who owns i mean that's what i'm saying everything that relates to misrepresentations let's say about things that affect your client who cares it doesn't matter if because maybe the thing is in his name but all they're concerned about once the dog alerts is that we are probably cause or think that there is contraband in there sure we need to go in there and check it out right so what difference does it make whether your client's door was kicked and whether he lived but frankfort  to believe me your honor about this dog sniffing at the same time that i'm also now coming clean about these ten other things that's the problem that's what franks required to court to do it required  not only ok i'm going to consider this dogs now but franks requires a court to also put in those material missions and let's look at it through the view of the magistrate who's now being told i'm looking at this through of you who an officer who's also told me false things and here is the false things and i don't think that the district court appreciated that that's what frank's required to do was well ok so you're saying that when you add in the various misstatements misrepresentations whatever you want to characterize them as when you had all of those and they so call into question the deputies or the officers credibility that the judge was entitled to question whether the the dog or never occurred correct correct and to that i would add that the eighty percent that hit that the dog tested that accurately that's in the search warrant affidavit so if you are testing for eighty percent accuracy and that's pretty good and one of the drugs is america marijuana so now we're down to like sixty five percent judge just thrown it out the i don't think the worst of the misrepresentations because my impression was even when you add all of those and they weren't of such a character to call into question that the deputy must a made up the dog sniff all together so what was the worst the worst of the misrepresentations is he said that he said kimmel was going in and out as recently as yesterday there was none of that he always information had to do with the storage facility gate which is totally separate and apart from the unit itself that was a zero face misrepresentation that's agree jus was not prudent and its desire to rush through the seating of the alternate jurors and was also not prudent in its instructions or lack of instructions under rule twenty four and rushing  through the instruction that it gave to the jurors can you remind me is there somewhere in the record where the judge was alerted to how much longer it would take alternate number one to get there there's nothing in the record about that because i remember the judge saying yes we contacted both the one is here and we have no idea when the other one is going to get it correct and so if that's the state of the record it seems to me you just have a really a pill bottle because we have cases i think in a different context that said even a ten minute you know even if the jurors were ten minutes late it's the judge would have the judge's discretion to say you know i have eleven other people waiting here we're not going to wait and hear if the judge had no i mean i get i get it if it's like she's literally at the you know the front door and she's about to be heard the judge says forget it we went in our juror number to get in there but here if we don't know how much longer why was it unreasonable for the judge to say look i'm not going to wait indefinitely i've waited an hour i have the juror ready to and i'm not going to these people with anyone sure and the problem is it's not even clear in the record how long the judge had waited before they even call because they had only checked in with a sick juror within thirty five forty five minutes within that hour so it's unclear when they even called it you're but the court didn't even wait the ten to fifteen minutes that he said he was going to wait for the juror then so what was the harm to the defendant the court not waiting i think the harm is number one when defense counsel go through their peremptory challenges they exercise them with rationale and a reason and mind and they do so with an understanding that there are there's a justification for doing that but the ultimate harm is the compounding of whatever rationale the trial four that the juror did not have any other conversations with anyone else during that weekend long interim by that is there any evidence in the record that the outcome the possible outcome of the trial was affected in any way there any concrete on but you can articulate there's not and that's why i think even under if it's not deemed a structural air that's why the government can't meet the harmlessness test that you can't you can't guarantee an impartial jury if the instructions that rule twenty four the assurances that rule twenty four requires a government can't show that the court bill read for the united states district court acted within its discretion in this case when it refused to order disclosure of a confidential informant or a confidential source or other who provided a tip to law enforcement in this case mr campbell failed to allege anything in his motion for disclosure before the district court to show that the disclosure of this confidential source was essential to a fair determination of his calls and consequently he failed to meet his burden to show that disclosure of this confidential source would have been relevant or helpful to his defense that mr campbell failed to show that the confidential source or disclosure of this confidential source would have been relevant to even one defense which is the bare minimum to have triggered that that was necessary to have triggered and in camera review by the district court the only thing that mr cameron alleged in his motion before the district court with respect to this matter was that the well he did not tie the disclosure of this confidential source to to any specific or a den of defense rather he made a blanket request for disclosure of the c i so that he could learn and i'm paraphrasing from the motion so that he could learn how the cia came to obtain information this information and to learn what the see what role the cia played with respect to this case that that's was insufficient in the court certainly acted within its discretion at the time of the motion was made to refuse to either conduct a hearing in camera review that is or for that matter disclose on that bare minimum there is no absolute right as this court knows to disclosure of a confidential source it has to be relevant to a defense that showing was not made in this case by mr campbell at the district before the district court people the relevance they argue is that the confidential informant may have had access to the unit and thereby increase the amount of drugs that were there why isn't that relevant first you aren't the that was not that was not part of the argument made before the district court that's sort of been an evolving argument that in hindsight has been posited before played he had no idea what it was was his defense at trial when he took he took the stand right he did take then it was his defense that well some of this is mine but any amount over whatever the threshold is for the mandatory minimum was the other person's i thought his defense was none of it's mind they all it was this other person's entirely i think this correction i think i think he denied responsibility for anything he did it mean it being a methamphetamine  er abundant quantities i think he claimed to have used an ounce of meth and methamphetamine a day which is a great deal as this court knows that i believe he disavowed any knowledge  or possession of any of the contraband found either in the bedroom that he was tied to just really unequivocally year on and on ambiguously and to the storage shit he was even just as equally tied to he mean that's what that's what they're driving at is that they wanted to show that somebody else had access and somebody else was was trying to play the blame on kemel for their again there's no there's no evidence to show that the you know i understand i'm just saying what's said they would not be relevant if you were able to make such a showing it would be relevant but here it is in distinguish from spiers there's no evidence that such is a roommate would have access there's no evidence that this confidential source had access had ever been there he just provided this he or she just provided the information is vague unspecific this detective conducted his own investigation even learned where this this storage unit was there's no evidence that this informant or or confidential source had any idea where it was and this was basically  shoeleather work to find out where it was so there's no evidence that any was able to make such an allegation is the core pointed out before in his own testimony there's really no end in that would have lent nothing in addition to it and again it's the test is is did the district court abuse its discretion based on the evidence in the allegations that were placed in front of it at the time the motion was made as to what this confidential source may or may not have known  may or may not have done in relation to providing a very general tip to law enforcement under what mr campbell proposes in this case the exception that he poses essentially would swallow the general rule that they're not entitled to defend it's not entitled unless he or she can show that the confidential source is relevant to a specific defense again this is an abuse of discretion standard not submit that the court did not abuse its discretion in either denying to in camera review to conducting and camera view review or to release the information about this confidential source with respect to unless or any other questions about the confidential source moved to the franks hearing the motion to suppress the district  court correctly denied the motion to suppress in this case again the standard is judge watford i think basically laid out just a few minutes ago and that is whether or not irrespective of whatever information is challenged in search warrant affidavit setting it aside if what remains is still sufficient to support probable cause then no frank's hearing is  and here in this case is really nothing it's really pretty irrefutable i would submit that the dog sniff alone and there was other evidence in addition to that but the dog sniff alone sufficiently provided probable cause to support the search warrant the granting of the search warrant without the necessity of delving into what tidbits of information the confidential source had supplied to detective clark and filled out the bare bones affidavit in addition to the dogs sniff so that here the district court correctly found that probable cause was even in the aftermath and it's not even clear that the information that really was not there was never really any a test of the of the other information whether or not it was on reliable or or inaccurate or  or an omission but irrespective of that the dog sniff is sufficiently establish probable cause a district court was correct in and not conducting or not granting the franks hearing and so what do you make of the medical marijuana issue then your honor i think in the brief i've argued that even if the medical marijuana was something that  also was perfume that the dog was also trained to alert to perfume but i make a difference in this case hypothetically perhaps but again the standard is whether not only whether or not there's a fair probability of probable cause it's i guess debatable whether or not something it's not a controlled substance would still supply a probable cause a fair probability that there's probable cause  here there's no evidence that it's this dog was trying to well i'm just using perfume hypothetically but i mean that's that's part of their argument is that the dog was oversensitive or a can alert made an eighty percent chance i think if my math is correct it's certainly a fair probability even if medical marijuana were even if it could be pointed some way that medical marijuana is what this this dog was alerting to it's not a it's not of an absolute right to possess marijuana in a store in a storage shed it certainly m the level of some sort of affirmative defense or maybe an absolute defense but a defendant an individual probably would have to establish that they're keeping their medical marijuana in a storage shed that's being visited multiple times a day under this evidence certainly i would argue it would be probable cause that this is not medical marijuana being used marijuana being used for legitimate purposes under two stolen and i believe the test testimony were that they were valuable or high end and they were in two separate locations it's a myth that there's a pretty strong no no direct evidence that he knew but i think this is the test that the test is knew or had reasonable cause to know i believe that's in the statute and as submit that having these two weapons at two different locations and they're both high and certainly any reasonable your could have found that which the inference you're drawing from the fact that they are high end that someone has broken such as this defendant supposedly was couldn't afford to acquire  them and other than some kind of an illicit transaction is that the idea that the value because i mean let's just say that they are high end but i don't know i got it on e bay at a real nice price i mean i guess i'm what i thought you had to show in order to prove knowledge in this possession of stolen property context was either that the person stole the stuff themselves or you put on evidence about the circumstances under which they acquired the property such that any form would have had to know that this is not a legitimate transaction in here as i understand it you put on or not you but the government put on nothing to show that he stole them put on nothing to suggest in any way that the circumstances under which he first came into possession of them suggested that they were stolen so i don't i don't see where the case was on  this i think the best argument is that had reasonable cause to know and having two weapons one and a lock storage shed with other contraband other illegal contraband in this  entirely but again it's another factor to the reasonable calls reasonable cause that he should have known that there were still and it's not you know there's not a as i read the statute there's no proof of an absolute certainty but reasonable understand the evidence correctly the government experts said that the amount was consistent with personal use and the it had not been cut down or found in bags for distribution so what was the i say funny things they do but it certainly wasn't irrational given the constellation of evidence in the bedroom me yes question and what's your response to opposing counsel with the view that the error in failing to ensure by that but i think that the district court in i think there's sufficient evidence this court could find that the district court preserve the integrity of this this if this record did not ensure that the were yours you remain the same oath that i provided at the outset of the trial which included the admonition that you're not to discuss the case with anyone watched any media attention to it or anything like that so jurors are presumed to follow the court's instruction i would submit that that's sufficient in this case under plainer review thank you i'd like to correct the point about what mr kimmel did communicate below about the possible defend his excerpts of record sixty no three defense counsel in his motion for to produce a confidential informant specifically said that the confidential informant would be relevant to the defenses of entrapment and perfect entrapment and sentencing entrapment so i disagree with the government counsel's indications that the contrary to address judge thomas is a question about the count of three mushroom conviction i do think that given what the jurors had to go through with regard to the marijuana verdict and the hoops that they had to jump through for the lesser included that there is a chance and we this with regard to the jury verdict generally in getting the special verdict that perhaps there is an indication that the jurors did not think that they wanted to go through that again to get the lesser included for the special verdict for the mushrooms and that's why and one of the issues i believe is our last issue we stated that we think that there was an error with regard to the process by which the district court went through for the lesser included offenses and we understand that  defense counsel at the trial below objected to any provision of the lesser included but that's a problem it's our position that even though we objected to it that doesn't give the district court a right to do whatever  and providing some special verdict forms if you're going to do it over defense counsel's objection you still have to do it correctly it's not a free for all finally today and the invited error wouldn't sen essentially to answer judge rawlinson question at the outset of the trial what the district court advised the jurors and this is the only time that the specifics were given with regard to the communication the district court advised i will tell you please don't communicate with anybody else your spouse significant other anybody else how you think to look at this case or whatever that was essentially the instruction at the end of each day after trial there was no other specific instructions given risk regards to communications nothing else was given that was the only instruction so when the district court stated remember your oath that was the only other instruction that the district court was referring to is our position that mr kimmel's entitle to a new trial and we would ask that this court advise that the just or court at the very least ask that and camera proceeding occur with the defense counsel being able to participate in that in camera proceeding so that the confidential informant can be discussed thank you very much thank you counsel thank both of you for your arguments  case just are going to be submitted for decision and will proceed to the last case on the oral argument calendar for this morning which is