chief justice burger's comments in jones versus barnes and he said quote there can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review this has assumed a greater importance in an era when oral argument is strictly limited in most courts often to as little as fifteen minutes and when page limits on briefs are widely imposed and your honors as i stand here watching my clock look down from fifteen minutes the fact remains that i still have not been allowed to examine the complete record to select the most promising issues for this court's review counsel just before you get further into the merits of that i just want to clarify precisely what the argument is that you're making so as i understand it in the district court and correct me if this is wrong you sought disclosure of the well fine but but that is not the argument that you are making now exactly the argument that you're making now is solely that you are entitled to the transcript of the in camera hearing exactly and at what point did you ask the district court for a transcript of the end camera hearing virtually as soon as i was appointed but which was after the judgment was entered right right which is the only time to do that well no you i mean you could have the issues change so before the district court the issue is whether or not we are going to get the informant's identity that was decided we were it was requested and not that objection is preserved in order to raise a roe v r o clean that's a question for the appeal that did the district court conduct the proper balance and it's only after judgment it would be essentially it wouldn't matter until a judgment had been perceiving conducted below on whether information that is confidential in a search warrant affidavit should be disclosed to the defense that on appeal appellate counsel gets that transcript without any showing at all other than there was a confidential attachment to the search warrant we wanted the informants name we didn't get it were on appeal now so we get the transcript clear on that there is no privilege here if you if the court looks at our requests we said we'll enter an attorney's eyes only order but we also say i'll just quote i also suggested the prosecutor can redact the informants name or identifying information from the transcript roe v r o specifically addresses that quoting ruby yarrow where the disclosure of the contents of a communication will not tend to reveal the identity of an informer the contents are not privileged this transcript is not privileged is as long as i say i have forget me being an officer of the court forget attorney's eyes only i specifically said in a filing just redact the informant name all i care about is the road we are all balancing i have an absolute duty the supreme court's been one hundred percent clear in cases like hearty representation in the role of an advocate is required i'm appointed to do it job very  constitutionally required job an important job i can't do it without access to the transcript i mean a hearty is about as i recall hardy is about entitlement of indigent defendants to get a transcript of prepare without charge there and that seems pretty far afield from giving you access to a proceeding that was held in camera in the district court respectfully honor i disagree because the underlying rational does hardy reach that conclusion harvey says you need a complete transcript of why so that we can do our jobs and that's what we're supposed to do is bring these issues to paraphrase chief justice roberts with the balls and  strikes well somebody needs to pitch those balls and that's our job and there's nothing on the other side your honor that's the the point so why wouldn't trial counsel have the same entitlement i mean why would that is argument all that and respectfully your honor that's not my argument at all and it goes right back to judge miller's question i mean what we're going to resort to go back to the old english star chamber we're talking about access to the  things that appeals are made of which is the transcript there's nothing on the other side there's no valid excuse there's no valid justification this is an informer from nine years ago i don't care who he is all i want say in english when you're you get this case for appeal you're appointed to represent this guy you say with the st thing you do is you want to read all the transcripts of all the proceedings so you can see if you have an argument a valid argument  this viable and in this case what your your complaint is that you have not on behalf of your client been able to scour the record to see if there was  in suppressing the confidential informants name and if there if you can see that transcript which i've read the transcript and these people can read the transcript and we can see that what's processed now so anyway that's exactly right and that goes back to judge miller's question why this is not an issue for the trial court until after the appeal this is really just about the appellate process are ask is incredibly small and the that you know i having the transcript is necessary for you to make a row v r o challenge but there are a lot of cases in which you know we have concerned review our of challenger lives and the proceedings blower entirely in camera on appellate council didn't have access to them  and i think part of the reason for the hunt is in a lot of case is disclosing the transcript is going to effectively disclose the in from or is identity because but be enough information there are the someone who's familiar with the case configured out and we even can represent to the cord i'm not trial counsel i wasn't and i will not be i'm willing to enter into an attorney's eyes only protective order i'm willing to redact the naman anything else all i care about as judge ward law put is whether the district to my questions why would you are argument now on appeal be any different than trial councils argument as which which i don't think was made but why wouldn't trial counsel have the same entitlement because  required under the rule i mean they try the court was clear i'm not giving this transfer i'm finding the transcript i'm filing it under seal and never this isn't i think this is close to my th appeal before this court i'm never had a transcript denied on appeal when i'm willing especially under these circumstances i mean the in in your honour's questions in your honour's questions were not were so i think we're skipping the whole half of the coin i and this seems to be potentially a percipient witness so i should get the trial court then considers that in camera the nies it that the issue is therefore preserved in order for me to make my showing though i can't even i haven't raised  because i can't in good faith do that until i know it if i mean imagine if i just i think i mean how would the court feel if i created one out of whole cloth it would be it's an absurdity and i would never do it this is not  yet it does seem to when i look at the cases it does seem to be there are a number of cases where we've considered really are of challengers where the there was not but the proceeding was held entirely in camera and i looked at them and i don't know what happened on or the trial counsel learns after the trial or you know there are other ways to get this information sometimes it becomes apparent during the course of trial or you know the nature of the case is such but this is not that  the be all end all of the merits of this action this is really about the proper appellate procedure and what appellate counsel is entitled to and that rationale underlying underlying harty that rationale underlying basic kind of concepts of due process and fairness and open corpse and protect and protecting of informants there they're all in play here in a way that leads inexorably to one conclusion is that we're willing to sign whatever protective order the informants information if you is even still alive if he's even still proactive if there's any concern do whatever it takes but let us do our job let us have access let us be as an open democratic process it's not supposed to the morning here on earth to see right on behalf of the government and may it please the court listening to the argument that being advanced i think the issue here is what counsel is trying to do in  is convert this court into a court of st impression what he wants to do is essentially take the appellate right to a transcript and then say this cork needs to engage in th and all right so what is happened in this case is there is a very full and complete record the government file of the under seal portion of the search warrant and the transcript of in camera proceedings with the expectation that what would occur here is that the defendant would challenge what occurred in the district court and the court would need to review the search warrant in full the transcript and poll to see if the district court did the appropriate balancing in this case and that record from the district court is very full there is plenty there that could have been presented to this court but no you haven't your your defendant asking for it making a discovery motion for the full and complete search one affidavit you then see him going on in further motion specifically requesting the identity of the informant in the case you then see that judge the trial court judge judge she specifically made a statement that after conducting the in camera hearing it w then allow the defendant to argue the balancing and why the balancing would favor disclosure of the identity of the informant in this case and the search warrant affidavit in full so there's the record that the government at least expected he would be appealing from i think that the problem that perhaps certainly counsel on appeal and perhaps defense counsel at trial struggle is this idea of ok i want to challenge as the search warrant affidavit but how can i do that if i can't see the sealed portion of and but this court has a lot of case law on how that process occurs not only with the respect to search once and rove yarrow but also it's very similar to the franks process that would be done he has a burden of coming forward with some evidence to show what his theory is as to why there is something he should be able to look at in the the sealed porson of the search want to go and your argument in part is that simple you saying there might be something there that could help me that says i'm going to ask the defendants to articulate what reasons they need the information or in order to articulate their own motions to suppress in for the defense of the defendants and the underlying trial if there is one the court indicated i need to engage in a balancing test to determine the rights of the defendant to this discovery and the government's interest in protecting the identity of the informant so to some extent they did that there was a declaration on file it was from counsel but the government did not object to that and it stated the reasons straights did more of a blanket form as to why they should get the complete transcript but that's the procedure that should be followed in this case they have the burden of going forward the district court deny them the entire transcript well the after the in camera proceeding the court  sealed the document and then there's no request after that point they did what they requested and what was important to them of course was the complete portion of the of the search warrant affidavit and the identity of the informant that's what they were specifically requesting and they got more of a search warrant affidavit they did and they got more twice yes and notably the court then concluded that after unsealing those portions  portions were sufficient to support probable cause in this case but what i my point is is there is always been an avenue for the defendant to pursue in this case and that is certainly what the was expecting to occur that those documents were there you could argue the record from the district court and that's what we do it's the go roll a case of triple three f rd nine hundred and forty four which states very plainly that this court must defer to a district's court's decision to seal a transcript now i don't mean to be saying that's without limit but the but the limit is this court could conclude that the district court erred in sealing the transcript and of course the problem here is defense counsel never argued it but the better i would suggest that the better argument was simply that the court didn't do the correct balance in this case for some reason it would come out in some other direction but that's not the argument that's been presented to this court so that's so that's the argument they say this is the circular nature of this argument right because that's the argument they say they can't make without reading the transcript yes and of course that's what they argued in the district court they said how can i put on my suppression issue if i can't see what's in the sealed portion of the search warrant and of course in the state of california there is actually rather has now been codified as to the procedures to be followed and those procedures are out there so the argument that circular argument is the same one that was advance imagined a standard is a piece of discretion or something like that because it's a way determination right right and of course the district court you presume would have done that way and deciding to issue i see that i have a considerable amount of period of time left if the court has questions the other issues that are before the court or statutory necessity from the  and after a palate counsel was appointed yes so they're already in europe yes so just their point was always i want discovery of the complete affidavit discovery of the identity of the informant so yes so going back efficiency of the evidence but it's only as to count one conspiracy to engage in distribution of drugs and that would have no effect on the sentence in this case because they were also convicted of regard to mr mathis the defendant raises a procedural issue on whether or not it was necessary for the trial court to specifically meaning in court in court  inquire of the defendant and then the difficulty or the area where the law is certainly evolving is we regard to the vagueness of the fifty one dollars drug allegation and whether some of i think there are some factual misunderstanding yes but i would like to clarify so if we are full of twelve novices counsel says my main concern is i want to be able to determine and i can't from the way it's given to us now whether this individual is  percipient witness and therefore should be disclosed pursuant to roe v r this is not just about a suppression motion that they didn't want to bring he wants to know whether this person is a percipient witness because that could really matter for a trial the critical point that i don't understand the we've heard it twice this court is a matter of st impression that's what this court doesn't it reviews the rovio balancing but then what do you make of the passages that you're that all of the requests for the roe v arrow were made specifically because st a little bit is unsealed and then they go back and ask again then the district court goes in tamra and makes its decision and once the decision is made showed the objection is preserved and then the decision is made there's no then there's we used it before i practice there was something called an exception right there was an objection an exception so what are you doing not to make your objection i want roe v are all material then the district court would rule against you then you would be required to make an exception i your ruling was wrong that doesn't exist anymore but the district court did say it for thirteen she would then require the defendants to articulate the reasons they would need the not the correct answers i'm not sure i'll double check but because the judge in grants it and goes in camera and then denies the motion but if you look out f nation than mine which is there's no question the request was made for the entirety of the riviera information then it was sealed because the district court ruled against the defendant that's the decision that's that then i ask for it on appeal that's how the process works there would be no point you'd say i'm not giving you the informant's identity i'm sealing the transcript and then i would say until the transcript and you're entitled to the transcript what's the right disposition do we need to remember do we just give it to you and then you can file a supplemental brief for me continue the appeal either way i think it would be it either way since the court i think what i filed my opening brief the court didn't have it at that point and so at this point the court would could stay the proceedings or the transcript released that and give me an opportunity to review it and file a supplemental piece bridge or the court could for those purposes either way with accomplish the same goal and i think the very last point i want to make is we focused a lot on what the defendants didn't didn't do but right now at this point as a matter of law under riviera we have said two things that make this information not privileged there is no basis under the law at this moment none to keep this sealed it does it wouldn't reveal the informant's identity because we don't frankly care about that at this point and what enter any protective order the government wants all we want is access to the transcript that can suppose he then you have access and then you claim that didn't do the correct balancing is that then reviewed for harmless error no you know we yes and yes it would be reviewed for a harmless error but we haven't been able to make our argument about harmless about why or why it's not harmless because i haven't been able to made the threshold argument so the supplemental brief would say point one assuming i thought one there r r the district court mis balanced the rights of the defendant versus the rights to keep the informant's identity point to the government can't meet its burden to establish harmlessness and that's something that also often gets lost percipient witness on a conspiracy that is in fact the exact scenario in riviera where the supreme court reversed the percipient witness goes beyond any suppression claims it goes to the fundamental core of our right