the court erred in at least several respects both in denying frank's hearing and in concluding that the search warrant establish probable cause as well as some other subsidiary determinations in the mix but st on entitlement to a frank's hearing the evidence that the defense put forth was more than sufficient to make out a substantial preliminary showing of an intentional or reckless omission and that that omission was material to probable cause the discrepancy between what was reported to the magistrate and the state of the informant's record in this case was the evidence of recklessness or intent what exactly was that ev or clearly critical to probable cause well was there proof that the officer knew of this i don't think i could say there was proof but i think the point i want to make is that there doesn't need to be proof there just needs to be a substantial preliminary showing and i think we got there i think there are several things in the record that do point to the officers actual knowledge of the informants conviction for lying to police officers we know that the officer looked into this person mr bowen he looked into her background he looked into her history he was aware that there was an outstanding arrest warrant authorizing them to go arrest her and i mentioned that right i'm sorry and he mentioned that he did your honor yes that warrant stemmed appear or for failing to pay a fine something like that after she had been convicted but i think it's critical that the warrant arose in that case it didn't arise out of a separate case nd the officer was aware of the booking photo of this person mr bowen so i think that shows on his part some steps he was taking some inquiry he made into her background we don't have to speculate about that  as well there's one more indication that i think speaks to the officers knowledge that miss bowen have this conviction and that was he mentioned a in association with a gentleman named tyler cones i think that comes about in the officers knowledge because the person that misc bowen lied about their whereabouts not being present in a house that was tyler combs so i think when we take all of this together that should be enough by itself to constitute a substantial preliminary showing but i thought you've emphasized the officers knowledge i thought the officers being reckless was sufficient to trigger the need so it seems to me clearly was reckless he was aware that there was a risk he might have a criminal history that would be relevant to the credibility terminations that seems to me and that issue i guess i you were going to get to in a minute i guess the question whether because i thought th told them and i guess that seems to me that the stronger ground for the government i'd love to hear what you have to say in response certainly because i disagree with that determination as well even if you consider the conviction and what that does to her reliability because i think it destroys it altogether but in terms of just to be fair to the government it certainly causes one to have doubts about how you can't just trust what she says at face value but that's not the end of the story right now officers had a bunch of other pieces that fit together that made it seem like you know what on this occasion at least she probably is telling the truth and that's what i think the difficultly said is that well issuing magistrate even had he or she been provided with this conviction nonetheless would have concluded probably cause exist that is what the district court said and i disagree with it st in terms of the factors that courts use to assess the reliability of an informant they start out looking at the history of providing reliable information i don't often and even go on that way i don't know what the differences between your informant and i are informant i mean the fact is that she i mean she was has any cause we don't have one simple yet i think it does qualify as informant activity they observe her go into a room they observe her come out of her room and she later reports to them that she bought meth in that room from a particular individual incriminating the target or suspect in the investigation so i think that does qualify as informant type activity and of course of them arresting her for why she didn't for being in that room and what she did in their own well she was arrested on the outstanding arrest warrant your honor it doesn't informant at least in the context as we know it in most cases i mean somebody who has a history of working with the government but i think it can i don't think it's a necessary predicate to considering whether someone is an informant or just a citizen witness or a bystander and that's the qualification that the government tried to make mr bowen out to be and like to just address the issue of corroboration all the officers could corroborate was that mr bowen was there and she was present and that she went into the room they didn't know what happened in the room other than what she told them they didn't search her beforehand they didn't search her afterwards they didn't engage in constant surveillance all they really knew was that was what she purported to tell them and i think that's different from the kind of court you know i think are they on that count the fact that nichols had no convictions for drug dealing so the police came forward saying that he's a known drug dealer i'm not sure where that came about how they prove it or how it really can fairly enter into the mix at a conviction for distributing or delivering narcotics yet he was a known drug dealer according to the police and i'm not sure how how they got that information i don't think i should speculate on it too much just to come to the conclusion on the point whatever the police officers were able to corroborate in terms of their own observations is different from the kind of corroboration that could usually serve to offset or ease concerns about informants reliability  when they get at the house she was staying in and around where you say they asked her what she was doing there and so on she told that she bought marijuana and she said that a part of it was in her backpack right she said it was either in her backpack or her purse right and then that when they looked in the backpack well that's a discrepancy according to the police they didn't look in the in the language in a case called united states versus gentry from the th circuit that we cited in our papers where the court said even if we describe the evidence of intent to distribute as overwhelming even if it is all overwhelming all that really does is it permits but it doesn't compel a finding on the juries part of intent to distribute here but this is what i don't understand on the theory i mean in this case is going to a jury the evidence and i should tell so therefore why are we looking at that at the strength of that evidence as to the question i'm sort of questioning the standard i don't understand because the whole premise has to be that the jury could just believe some or all of the  right right certainly and we were asking them to disbelieve aspects in the record that maybe pointed to intent to distribute we were arguing that they should know they didn't believe for example with regard to his confession dealing with two pounds a week that he was just blowing his own horn and was certainly yes that was what we were arguing that it's not a question of weight of the evidence or strength of the evidence or certainly sufficiency of the evidence it's whether the evidence is in dispute and it's whether a jury could stand up and say a possessed twenty kilograms of cocaine for my own personal use of simple possession so i think that's a different universe and this case is in between the two extremes that the hernandez court  frank black or detective frank like we wanted to make three points and one of those was that the well the district court submission of the testimony has to be reversed the st reason why this is not actually helpful to the jury the federal sense are clear that this court has been clear that expert testimony is not necessary if it concerns a matter that anybody could figure out for themselves and that's from specially which is the th circuit case in other cases that have admitted this type of modus operandi testimony that the government sought to admit here to explain the sort of seemingly innocent activities that are common in sort of large scale drug conspiracy cases of things like using code words things like acting as a  lookout things like being an unknowing arguing that you're an unknowing visitor to a certain location that wasn't the case with detective black's testimony detective black or of any chance to find two that my one i would know a foreign injury was and i know you take issue with the substance of it but these questions about how much they use and so on i mean that doesn't actually explained why he knew about the drug quantities and so on he was an unusually knowledgeable and seems to me he did have some medical training as i understand it so he had a from the record indicates he had a background he started out  a that's correct your honor but i think that the discrepancy that we see between this case and other cases in courts around the country that have accepted this type of expert testimony underscores that and this goes to the more  reliability point that his testimony regarding dosing wasn't reliable i would respectfully disagree that that his testimony on that point was demonstrated a higher degree of qualifications than other than other expert witnesses and i think that's because he didn't actually explain how his expertise or how is experience led to those conclusions that he made on dosing and how his expertise or his experience gave him a sufficient basis to draw th conclusion he's saying his conclusions were incorrect i'm saying they were completely unreliable judge unreliable because of what because the federal rules of evidence say that we have to apply the same standards of rigor and and scrutiny for an expert who is qualified based on their experience as somebody who's from a comes from a more scientific background or is testifying as to a scientific discipline so the daubert factors that apply to a scientist may not necessarily apply one to one for an expert qualified based on experience but we do have two there are certain questions that the courts need to ask in the visor committee and the federal rules of evidence has been clear on this how does a detective black's experience actually lead to his conclusion do does the court have that he's a plane's experience and a reliable manner take a black talked about having conversations with drug users he didn't identify any participation in controlled studies he didn't talk about personal experience  he didn't indicate who we actually interviewed or spoke with what assurances we have that that would be a statistically meaningful sample or an accurate sample of individuals and so what we have here is a detective who is basically summarizing the fact witness testimony from from officer florence and officer dubois and the other officers who testified in this case as fact witnesses and essentially giving the added approval of an expert to that united states i'll start with the suppression issue where the majority of the time was spent for you get into the merits of the appeal can i just ask about the filing of the fifty one how does your district have just the different policy about when to do that this struck me as a case that's not even close to sort of a case where someone should get life doesn't get life without parole for this yes from and that is her i did you i don't understand why would you do that in this case you know confidences but i'm just curious this just from the districts that i'm used used to seeing cases come out i don't i've never seen someone get in a fifty one in this kind of case if you guys have a different policy just like that's all i'm curious to know your i can't speak for the but that's not an answer the question is why do you give us i mean why why did you make the decision that that would be sought and i understand that that's an internal decision i mean i asked a similar case issue when l asked some years ago and because some districts just don't do yes there are again i could try to provide an answer to you but again it's going to incorporate a number of issues that are outside the record to include the defendant's criminal history a lot of the information that is contained in the p s r pertaining to the defendant history and what the defendant has done over the course of his colonel career i gather that there is nothing in the new statute t the district court found are governed under a clearly erroneous standard and the courts are the your honour's are quick to note that the district court made a factual finding that the officer did not commit any reckless or intentional magistrate who's going to be reviewing the affidavit given how heavily it relies on what she told the police so of course you would if you were any responsible officer of course you would do some kind of a check to see maybe there's something i need to alert the magistrate to and so if you were officer here didn't do that well you certainly subjectively aware of a risk in this regard and that's seems to me the definition of recklessness whether he knew for a fact she had this particular conviction that seems to me not to be mean well i would disagree with a court in a number of instances there the government cited and it's brief in ewing once the officers have established probable cause for the search warrant they need not continue to investigate at that point the officers based on their into her residence that investigation at that point and once they obtain her statements they confirmed that she had in fact purchased methamphetamine from the defendant just before was sufficient for probable cause at that point was contained in the same affidavit as a search warrant for her backpack and what's notable about that is that the information that she provided about what they would find in her backpack was the basis for the search warrant to find that very methamphetamine that she could have been charged with so the court had discussed in the government side in its brief issues of corroborating not only the the individual's information which the government just described but also statements against you know interests corroborate or tend to provide the credibility and reliability that an individual to the individual's information and in officer you know acted responsibly here i think it's just not it's not i don't i just don't find it persuasive that the conviction she had was highly relevant to assessing her credibility and so the fact that she had already lied to to an officer before to try to protect someone obviously she could have been trying to protect someone else here and then dimed out mr nichols instead of the real person that she got from for all the officers only answer but even if the  that's not the end of the end corey particularly with regard to franks and whether or not you're entitled to a hearing that those that omission were it to be included in the affidavit would have to affect the probable cause  and who she bought it from my he was she specifically was she asked about this particular mr mr nichols particularly where she was or pointed out to her that she had been seen in front of mr nichols  room yes so the conversation that they had with ms bowen came after their observations of her and at the end hotel i i won't be able to speak to what questions were specifically asked of ms bone what i can speak to but if for example they said we saw you outside this room where mr nichols was did you buy methamphetamine from him that might be a different story from you know did you buy methamphetamine who you buy it from the i don't have the answer to that question aren't simply because we're relying on the four corners of the affidavit here and the information was provided to the magistrate was not based on the types of questions asked for rather the information change and part of the basis for that was not only the underlying facts of that conviction that she was in fact attempting to hide somebody from being located by the police veracity issue can be fatal but that's not necessarily true because the basis for finding probable cause in an affidavit is on the totality of the circumstances so when you're looking at that to tell you the circumstances it's worth considering what type what were the basis for that conviction and the district court did so here and while that is a court acknowledged that having a conviction for lying to the police can't remember for sure but i think this record said well notwithstanding the nature of the conviction it would have been relevant to an assessment of her credibility and that cannot possibly be right it's hardly relevant the question then just becomes ok this person sort of suspect  that while the information related to bowen's prior conviction may have been relevant to the magistrate's issuance of the warrant and it found that it was not determinative and i asked you to address the two instructional questions ye are one risk the one that your opponent dressed in the other is the in furtherance instruction and why don't we start one hundred further instance structure because nobody has talked about yet for me instruction that was given  seems to me the jurors reaction joe was quite correct it doesn't explain anything because the the nd set of what about you consider the x y evidence is just a sufficient  those it comes out of the sufficiency cases but it doesn't tell you what you're looking for so the question is what are you looking for and as to that the only thing the judge said was you're looking for it there has to be a connection well that's not really accurate is not what the terms of the court's analysis that the information as provided by the district court in that jury instruction did not accurately describe what the state of the law is i didn't say that i said its interest group should have what furtherance made just a description of what kind it accurate to say that in furtherance means a connection it is accurate your honor i said accurate it's accurate because in furtherance of require something more than mere possession which i know is my size by the fact more not just a connection well but that's but then you describe further that's where the court goes into the totality of the circumstances and some of the considerations what about the the last from rd offense now i understand that there may have been really really strong evidence that he possessed it just trivia but one has to assume here that you're dealing you're trying this to a jury because a jury cannot believe some of this really wrong really strong evidence otherwise you just lock him up without having a jury trial so therefore if the jury cannot believe some of this really really strong evidence why don't you give the lesser included offense well i disagree with the court's premise that there would be no point to have a jury trial of the government is the evidence is so strong the defendant elected to do that so the government did put on its evidence that evidence the requirement is not just that there was some evidence in the record that the defendant in this case your honor there was so much evidence that the defendant who possessed of the intention distribute including his own statement that he distributed the evidence there's a rational jury could not find but if they believe  here that they they they don't believe that could they convict him of something less no you are it's not just that they don't believe his statements you have the amount anything else i think that's dead wrong i think it's the magistrate who a properly informed magistrate who has all relevant facts and circumstances who's supposed to make the decision not the officers for themselves and then they get to bury their heads in the sand and avoid unpleasant information about informants reliability in criminal history with respect to the issue of mr bowen making a declaration against her penal interest number one she was never charged with it and number two the court was asking questions about  i think it's relevant because well it may have been against her penal interest somewhat but courts distinguish between statements that are genuinely against the clarence people interest versus statements that point the finger at someone else they distinguish between saying i did something and someone saying this was my source of supply he sold me drugs statements made in a sense to curry favor with law enforcement i think that's what was going on here unfortunately we don't have sufficient facts in the record to make