three issues mr bircham will address aging hugh g s testimony the seven zero one and seven o two issues will endeavor both to go about five six minutes and save the remainder if there is any for a bottle you honour's the september wiretap application failed to establish a necessity specifically the application omitted critical information about the success of traditional investigative techniques against maurice yo and his brothers now when properly considered these omitted facts do two things first they demonstrate that says that the september wiretap application did not contain the requisite full and complete statement as to whether or not other investigative procedures had been tried and failed or would be reasonably unlikely to succeed the emissions further demonstrate th wiretap was not strictly necessary counsel you didn't put these in your application did you see when or when you when you filed the five through eight as the ones which are that you're concerned with those were filed with respect to august they were not repeated with respect to september trial counsel trial counsel did not what the district court axels just a court was well aware of these allegations because she dealt with them correct that's and that and therein lies the point right but but counsel and i understand that you were not trial counsel but  august and did not make them with respect to either the september or the october application and and there were allegations that were made with respect to previous affidavits that were written that were repeated and where you said please incorporate this in our in the september application that you did not do that with respect to five through eight right your honor ok so it was that error on the part of counsel yes that's the council should have done that but follow up on your honor's question counsel should have perhaps should have forget perhaps should have stated i am reincorporated five three but any but it's implicit in this sense that if you look at the september application which we know the district court did the same omissions are there i mean that it's plain as day so yes that's that is not why is it is plain that these are that these are omissions they also have been emissions in the october application they didn't do that either right correct ok now why are allegations regarding people regarding murray c e o and valente way at a time when they were not targets exactly they  july and early august what why is that relevant all of a sudden to september because and that's the exactly what the district court says your honor because by september maurice you know is a target and we know that those omissions are in the september affidavit but right but why are they omissions if they relate to a time when the government did not have them as a target i understand your honor's question there when when when that when the file when the application is filed in august i think was on august ninth was the wiretap allegation those allegations are i mean that the contact with the lead to annmarie seal was really fresh some of those were just days before that application now that application has to be renewed every month or so in september why would the government why would the government have to include something that related back to end of july early august at a time when  targets of their investigation oh your honor because those are critical facts as to necessity let's take an example i government agent have a g p s warrant that allows me to trap mauricio in real time they know his address they do not set up whole cameras they do not do trash searches they do not set up physical surveillance outside of his house but for one time this is a target of the investigation that they don't take any measures to conduct traditional investigative techniques against so certainly all of those things come into play as the september application and if i can just quote with the district court set e r seven forty one the amount of information at the government's disposal at the time of this affidavit included data from g p s warrant for marie seal and the exact date time and location of the farmers board's retrieval it would seem that there were many fruitful cost effective alternatives available to the government that went unexplored and then the go to the district court continues and while we agree with disagree with the district court's conclusion the findings that are seven forty seven one of the goals of the investigation was to identify stache asas and the government believe ran one so the government was required to identify and try or say why they could not try a normal investigative procedures as him more recent was identified in the target in both the september seventh and october twenty sixth affidavit so this is a got district courts words here's the key so the government's failure to even discuss possible techniques as to him is especially hard to excuse in those affidavits that in my mind is did the application state adequate assertions even though some may have been conclusory so that on its face th what i've just described in terms of september we know that more recent was a target yet there is no discussion within the four corners of the affidavit as to traditional investigative techniques about him in the sense of th reason your honor is the omissions which then we know about and have to be added in so when we take those either one should result in a failure to establish necessity but certainly when they're both combined the fact that there were no traditional investigative techniques tried in the categories i've just described such as paul cameras and the others and the omissions about what the government could do and just simply didn't do those combined  that say it was necessary to do a wiretap because there looking at a conspiracy they want to know everyone involved right yes ye every wiretap application and not assume coming into my my colleague's time but i'll just say this your honor the points of the wiretap statute the presumption against wiretapping is that this is not supposed to be something easy for the government to do this is supposed to be if not the last resort to one of the last resorts and here we have a situation where as to my client and really my colleague's client but certainly as to my client they didn't do the legwork and when they could have done the legwork for example farmers boy they don't do the leg work so here we don't have a necessity in less the court has questions about i have a question about how you get into to this analysis in the first place there is a district court judge you've there was motions that were filed they didn't include five through eight the district court judge said i'm not considering that because that wasn't part of the application and then later on based on the discord judge's ruling you're asking the judge to reconsider that decision in the judge said no you had your chance and it would we are we now reviewing that for an abuse of discretion or we're reviewing that decision to no so here's the problem a little bit of what happened in those the district courts the decision not to review those was saying i'm not going to grant to frank's hearing but that doesn't matter because the district court finding franks is a i don't understand all the focus on franks to be to be frank because the purpose of franks is decide whether emissions are reckless or an intent intentional that's in consequence in the title three context suppress remedy whether or not there was good faith bad faith recklessness negligence it doesn't matter so this court has been very clear and well it matters to us because we need to figure out procedurally how we get to your question and answer is this court of discretion the ultimate finding of necessity so are you saying we don't need to decide whether or not you are entitled to franks here or not definitely ok and you would concede that you weren't entitled to a franks hearing i don't know that i need to conceive it in consequential ok to the district court abused its discretion considering what it knew that is that reviewing judge in finding necessity did it considering both the failure to state against maurice in the four corners as well as what we learned at the hearing about the omissions and this is not about the recklessness at the hearing this is about the documentary evidence these are reports we don't need a hearing to say that they could have followed him to farmers boy we have a report we don't need to be hearing about the d witnesses huge he was not one of the expert witnesses what should have been fairly limited testimony by he to interpret the ambiguous parts of the title three calls that were just spoken about became really an avalanche of impermissible opinion testimony  spanned the trial from the very beginning to the very end we've argued that it was in the miscible under seven zero one and seven zero two the government said it never crossed the line it to seven zero two evidence if we even if we assume the government's right that this was all the seven hundred one lay evidence it was still in admissible and improper for a couple of reasons first of all i think most evident is a fact that so much of huge testimony concerned plain language statements the case all this court is crystal clear that if you could have a law enforcement witness testify as to ambiguity in recorded statements it has to be ambiguous language and cannot be something that was in within the clear and common knowledge of the jury that's from gadson and that's what he did throughout his testimony the government c from this court said if you have maybe one or two of those instances where someone's interpret in plain language it probably doesn't matter because of the languages in the cause the same as what the agent says but the panel and raise various said quote plain language testimony cumulatively however may have encouraged the jury to defer to the agent's opinions instead of listening to the calls and reaching the independent judgment that's what we have in this case we have agent huge essentially taking the reins of the evidence and applying to the jury of plain language and and several that have objection several of them do not but several of them do have objections exactly what we said in the in these briefs no but but the the the gist of what the complaint was was made clear to the district court and the the morning your honour's may please the court jennifer corbett on behalf of the united states as indicated early on by the defense counsel's arguments the facts relating to a wiretap are somewhat convoluted  the procedural and factual background so i want to review some of those just to illustrate why the wiretap was properly granted and also properly handled by both of the district judges that dealt with this issue first the with respect to the procedural record there were allegedly four defects in four affidavits that were raised by defendant below the the group and numbered and some were repeated and as judged by be noted the ones that are being discussed in this appeal are not ones that were repeated as to multiple affidavits counsel if if we thought that this was if we thought this was a mistake and a mistake of counsel is a proper for us to review this here at this point or does we have to let this play out  yes i think it would play out in hades your honor i think the mistake of counsel is only important if ultimately there is any materiality and whether it was a proper strategic decision those are the matters that actions appear to be very very complete and they do and they do incorporate arguments from one affidavit for another affidavit but not with respect to these although they do raise objections later on they do tell the district court we want you to incorporate five through wait for the september affidavit to tell tell the court that i think at least twice yes so it certainly was raised to the district court and opposing counsel some some very provocative points as to why by the way perhaps should have been should have been repeated improper september affidavit they could have been and they weren't the government's position i would submit is that they weren't material ultimately and so whether it would be arising in haiti as context or in this context this court can decide with respect to five through eight that because there's a lack of materiality that it would be essentially irrelevant whether  as record at three eighty four the call itself is between more recent in been zollo the at this point the investigation and even proceeding into august and september the relationship of the various parties are unclear and when you have this lack of clarity coupled with seeing that the investigation is taking is the i'm sorry the wiretapping is being sought not with a device being used by maurice about a one take up blank was even more even less was known about him in fact he was not even named as a target subject with respect to the  september affidavit very little was known about his role although at a later point in time the agents come to realize that he was also where tow this was not known to the agents he was believed to be a fringe player at that time and his connections were even weaker with respect to the persons using the devices that were sought to be intercepted in the september affidavit and thus this goes back to the question of materiality whether the certain investigative techniques that were undertaken were omitted and whether the government should also have taken additional techniques with respect to valenti and maurice you have to be examined in the context first which phones is the government seeking to intercept and then also what is known at the time of that a argument though that there should be like an incorporation of what the district court judge found in to the september affidavit i think if you had the same afeared you might have a stronger argument but i think once you get into a different in what she did why doesn't that then transmit into the subsequent affidavit i was for as was found by the district court in argued by the phones i think it depends on the context that you're discussing so if you're in a frank's context i think the answer is that the  recklessness or the the mens rea if you will of the agent from what agent to another i don't think you can just impute that and say because it was reckless for this agent based on her testimony at the franks here and that therefore now every subsequent affiant is going to be also reckless and essentially the judge found initially that the affidavit allegations were going to be examined separately and that is especially important when you're looking at the difference between the august affidavit and the september affidavit but even goes back to july as well for necessity i think it's less of a factor but you can still consider why the earlier affiant who did have involvement first person involvement with those decisions and or missions what the the reasons were and we know those reasons in this case because the supplemental affidavit that was submitted and this is part of the government's excerpts of record agent dollar discussed in the context of the august affidavit why she did not  in time to august second was not why she believed that not to be fruitful and not material as to what the investigation found that later after that later surveillance alternately did not help because it was not until the customs and border protection person now i'm told that information about the border seizure was transmitted to the investigating agents they were not aware that in fact a car had been sent to secondary and those couriers had been found so even though they conducted on august second some surveillance and they reported what they saw they also reported  incidentally the counter surveillance and to the extent that's an issue i would refer the court to the excerpts of record in memory see those excerpts at four fourteen and four fifteen and that is the original surveillance notes and place the driver made a number of unusual moves and they talked on the phone and or they looked as if they were manipulating phones but the agency did see drug transaction they had no reason at that point even with the interceptions going on the contemporaneous interceptions they did not see a drug transaction they did not even that clearly made clear that those two individuals in the united states were was going on in september and up to september demonstrates that the omitted materials and the or needed investigative steps were ultimately not material and that is always going to be important because the affidavit is always going to be viewed necessity in the context of those devices that the government is seeking  so i planned to go back to the record after or them look at your application but is there a particular language in the applications  for example tunnels not having been located even though they had previously been discussed in intercepted conversations and in addition the affidavit describes the need for interception because the agent the agents have been unable to and this is so i'm going to head to the next page here on or more research excerpts and record at two seventy five the agency says the following we have still not located the tunnels between the u s and mexico that morales discusses shipping narcotics through or identified morales's associates who coordinate the drug luis who was in in she believed to be in tijuana mexico with respect to target telephone nineteen interception was being sought for that telephone and that telephone was being used by vidar so going on if i may to paragraph sixty four also on our choose seventy five paragraph sixty four discusses some of the reasons that  the agent's admits that the interception of target telephone one thousand is necessary and he provides a number of reasons i'll just to highlight one of them it's approximately seven lines down interception of the dolls target telephone one thousand is needed because of a doll helps various narcotics suppliers transport narcotics into the us and there's no indication your time it would be that he was someone who was in the united states and was involved in transportation perhaps maurice you know was also in the united states and according to the supplier affidavit was believed to operate stash houses so what was known about their roles indicated and over were really set forth with respect to the sesame for the individuals whose telephones were being sought to intercepted two persons in mexico doll and luis and two persons who were believed to be involved on the mexico side with sending and supplying narcotics that were then being discussed although it's discussed in the probable cause section i would submit that the information about him actually supports that it was not material that investigative technique either were used or could have been used but were not used with respect to him so were they picking up conversations are not on the comp where the target telephones was maurice you're being picked up on the screen these conversations he was your honor and in some circumstances it was known that he was or he was being identified as maurice you know there were times that came up later on where he was being identified as men go it was unclear at all times whether that was the same person but respect to target telephone nineteen and august second which ultimately becomes what is able to be linked later with the border seizure but also there are conversations establishing probable cause for target telephone sixteen in which luis has a conversation with them or we see oh but they indicate that maurice e o is not the person who will be driving who'll be actually driving drugs across the border although he may be receiving those question yes now is there any discussion in here of efforts they taken against mari see or no there is not and is this is that because it wasn't relevant or is that because the  particular allegations the court's decision on that matter is not being challenged on appeal what's being raised now is essentially that five allegations that were numbered five to eight should have been applied to him but we're not  failure to conduct as opposed to a misstatement if we were talking about a misstatement it might be a different thing to say well you adopted the misstatement i hear it's a lack of information so the way the record exists you can't speak to saw the time and thought it was time remaining if i could answer questions with respect to the expert matters which i know have been have been raised and sort of more substantially brief than the than the cu note that the that in addition to the diff fence and not challenging these matters the government had a drug trafficking expert that was a separate expert and that the defense in this case was identity was not meeting can't tell me what the document is this is the transcript from the initial suppression motion hearing i think the september affidavit the analysis is the same with respect to the august affidavit the september affidavit they knew the agents knew even more based on the intercepted calls that happened between august and september and so their failure to discuss any normal investigative procedures taken or considered against murray sealed the sale or valentine morales is equally f it's preserved but it's actually pretty face it i understand but you know i would i would ask your honor to focus on the first part of your honor sentence it's preserved and that here here's what i would suggest to the court my colleagues then explains the only reason we did is because of the proximity of time between those admissions on the august ninth affidavit there's an explanation from counsel to the court as to why they were included in august and why they might have been omitted from september but then he then once he realizes he raises it and then they raise it again in a written motion and they ask him to consider it and your honor even beyond that respectfully what i would suggest for my counsel my my colleagues argument your honor asked directly was there any discussion of traditional investigative techniques against you and your and the government candidly answer no that's and that should be the whole description because what we're looking at objective from my client's perspective he's picked up on the wires the government told you that he's named as a target the government told you that and then they just told you there's no discussion is necessity for him that's just you make a powerful argument counsel and i just want you i just want to make sure that i understand it because the argument that you're making doesn't have anything to do with five through eight you don't need five through eight to make the argument you're making now is that correct correct your argument if i win i don't need five through eight it's the flip side of the coin i have ignored necessity for marie seo to their peril and they've all made it what they should have added and that's what we see time and time again in this in this court case law is that they own the they failed to do the traditional investigative techniques then they don't tell the court about what they did that actually helps so it's that's what i was trying to do in answer to judge a question with a two part answer your honor is saying look the government has essentially conceded just now that there's no necessity showing objectively that's the first prong of this court's task we when the court doesn't have to look at five through eight but if the court does look at five three and what the district court said about it then we went to because the district court said the one quote i didn't give this court is at seven forty eight  location of stash houses the government didn't do that either and not that they just didn't do it they didn't tell the district court and remember the point is there is a presumption against wiretapping and in this case the government didn't meet their necessity