but before i do that i would like to highlight one key argument on each of the search issues first on the fed ex packages search the government has the problem with the search warrants language you just take this piece of paper here the warrant and i think every problem with your argument on that i mean i thought out we use fed ex all the time to ship our stuff back and forth from home tabor's to where we're sitting and usually there's a piece of paper i may have one hand hearing i don't see right now with doesn't matter and you stick it in the plastic envelope or you stick it onto the fed ex box and there are multiple sheets for the senders copy to retain the fedex copy the camera what they call the third copy and then the fourth copy stays stuck to the box and they have a number and if you want to ship a second box use a second she and it has a different number now here the search warrant said to search one box with hand it on the other hand it said search the box with this number and there are two boxes with that number well i don't see why the warrant has to be red to mean one box anymore then it has to be read to say search the box with that number and if there are two of them then to have that it be the same ordinarily only one would have that number to be the same your honor is if you ship something and you didn't use tracking numbers and you just identified it by the address and there were three boxes with that address well what if there's an inherent ambiguity there weren't also says search warrant for parcels in the plural and the description of the parcels in the plural so that already makes it somewhat ambiguous as designed to avoid they're not going to look in somebody's struck of his car and his pockets and anything else in there two identical boxes with the exact tracking number of it appears in the weren't sort of seems to me that a all i agree parcells is ambiguous the problem is one cardboard box is not for what it's worth the district court itself if you look at excerpts of record twenty six i believe it is twenty six twenty seven it's just that court itself characterized t well it shows you that one other reasonable person or judge interpreted it that way the other point i want to make owners good faith doesn't apply here because if the warrant is for one cardboard box which of course is what it literally says in the search of the other well gee at least one of them could be searched when you have two or three or more different things that fit a description and you have to be more specific in your description to pick one of those out  specific than a tracking number it's just i've never seen to fedex boxes have the same tracking number and i was thinking the same thing judge gruber was a cop says well i'm just a look at one box i only want to open one  box and that's tracking number and well and oh gosh there are two boxes with tracking number and which one to open actually in this case you're well first of all there might have been something different about the box like you had some other mark on it in this case i believe one of the most original is a command to search as much as it's a limitation on the policeman is commanded to search the box with tracking number and right but but a warrant that doesn't identify which of two that fit the description is not sufficiently specific and not valid in the for then in this case it could have been done i believe because i believe one of the boxes had an original and one of them had a copy so now before you run out of time because your time is short i'd  what his options were understood his rights understood everything that's required to make a knowing and intelligent waiver in this instance the two deficiencies i'm suggesting are the nature of the offense and the potential penalties well first of all your honor i do want to really highlight the forester a case which says three things that i think are really important here before you start looking at the record as a whole first of all it says that quote the freddie hearing transcript is ordinarily the only part of the record to which we look unquote second it says we consider quote the record as a whole unquote only as a very limited exception in very quote rare cases unquote third they say that the defendant's active involvement in the defense is not sufficient to show which of course is mostly what the government highlights here there's three reasons you're more well around three reasons it may be a little more why i think the record as a whole doesn't show it here your honor first of all the government points to what mr mr what keil said about sentence at this colloquy ten months after the waiver that wasn't sufficient for a couple of reasons first of all when he quote knew unquote first of all with something really ridiculous that cocaine convictions didn't count as a prior so let me let me direct you cause i'm concerned that will run out of time before before we have to guess at his initial appearance here client said that he understood the substance of the charges pending and th read the charges or have them read to him so that that's something he also wrote a letter to the court talking about the allegations the charges he referred to some of them by number and discussed the relevant evidence and he talked later to the court about being dissatisfied with his counsel suppression motions and discuss them in extremely great detail so that context that we can look out of the term and what he actually described is really what there was i believe in force or that he was actively involved in his own case look at what we don't know it's not just active involvement you said the problem was he didn't understand the nature of the offense and the penalties and if the record shows that he actually did understand the nature of the offense  associated penalties then then that's not just a vague active involvement but let me let me let me step back that he said he understood the charges and he said he read the indictment but at no time did he ever say what he understood the charges to be all he described about the charges was that he possessed with intent to distribute cocaine he never for example discussed what he understood conspiracy to mean counsel yet he prosecuted by the  petition pending and you have my motion produce useful notice right and i have a timeline that we put together of preparing for this case and again i sure judge scrapers concerned about time but when you're talking about forrester and what he knew and what she's asked you to consider buyer seller conspiracy is yes and wire seller conspiracies do actually raise complex issues of conspiracy law and so you know there's no indication that he understands the conspiracy requires and exactly what that means yes he apparently had either read or had read to him at the arraignment the conspiracy charge which uses the word agreed but you know if no one explained what that meant in your conspiracy charge and i'm i'm listening ok so that's why i think you can't assume he knew the nature of the fence on the sentence issue and then understand the potential penalties there's two problems aside from the issue of he clearly had a ridiculous misconception of the prior conviction and handsome and there is also the fact that we don't know when he gain that knowledge under earth's can you need that knowledge at the time of the waiver and there's no indication here when he have that  number one problem number two which i don't think your honor should let slide by overly easily is no one ever told them about another very significant part of the penalties the supervised release there was a mandatory minimum term of ten years supervised release with a maximum of life here no one ever claimed to explain that to him now the government scotts and basically says that's not important well the area don don't case in the gerritsen case both look to rule eleven  analogous context and rule eleven certainly requires advice about supervised release so you've got those two problems as far as the potential penalties now you know it may be that the judge suppose you were to lose on everything else with or else not have a reach but prevail on your for red argument what would the directions be in the remained the directions of every man would be to vacate the commission convictions send it back to the district court and for a while to give mr wood keel an opportunity to reassert his right to counsel so what would happen would be you'd start over from scratch he could waive counsel or not waive counsel and then he would get a new trial i guess in theory he could waive counsel again i don't think he would want to go over right and i'm sorry it's a do over right and the best he could get is a new trial correct and relish more important in this case really to getting a suppression motions with the not be polite to mr will kill someone who knew what they were doing thank you you have about half a minute so afternoon your honor benjamin baron for the united states planning on taking the minutes for the fred issue my colleague mr c right seven minutes for the fourth amendment issues so so was there a conspiracy charge in the state case i don't believe there was your honor but i don't i don't think that's necessary the defendant clearly understood that he was charged with acquiring the cocaine that he personally was attributing to others from all of our issues as wholesale distributor there was never a buyer seller argument that was relevant because the defendant was himself a wholesale distributor but this was an argument that was never raised the records clear the time that he waived counsel it's obvious the judge did not use the script that's in the district judge's bench book and he didn't till the defendant what the government would have to prove on each of the five counts and didn't tell walk he'll what the maximum a minimum sentences if any would be as often what the judge will do since it's a very complex calculation is just to ask the prosecutor to state those things but it's done in open court i just don't understand how that can be saved by the prosecutors saying well i told them in private what you should have told them on the bench but it's not of that's what saved your honor i also don't see how it can be saved by the defendant saying oh i know all that stuff an awful lot of students who said i know all that stuff before getting an f on an exam my argument is not that state either you know i want to be clear on that i think that there are a couple different answers i approach is i want to take to address that question the first i w i think the court can look only at the freddie hearing this themselves in order to make the determination of the waiver was valid now explain that in a moment but before i do i disagree with defendant statement of law that this court only in rare circumstances looks to tell me the circumstances and let me give you four k cites for that in the french decision this court said the focus is probably what the defendant understood not what the court said or understood and said a revote review in court may look to the record as a whole not just the predicate you understand  so so let's look first at the february twenty four team hearing and that hearing the parties discussed at length the motions that were filed by defense counsel and then of course four days later another motion was filed by defendant personally with priest predates the december twenty fourt know that how do we know that no nobody knows whether it's him or jailhouse lawyer who's helping them or you know that because it's stated on the record the defense counsel actually said that he was intimately involved in the drafting of the motions that he put the defendant ideas  understand i'm asking about the facts i understand and i'm going to tied that decision to the facts of this case and that decision the defendant explicitly said he did not understand the elements and there was nothing in the friday hearing that addressed the elements but a prior hearing the was charged here both the motions filed by counsel that defendant participated in and his own pro se motion explicitly address the fact that in the substance or does he was charged with knowing knowingly and intentionally possessing with intent to distribute cocaine and that he was charged with conspiring with all of our so do so and he referred explicitly to overt acts and further it's of that conspiracy that is materially identical to the exact same advisement that this court held was sufficient in locus assume it when the district court tend to i mean this is where my other question it's a cross over yet and this is where it matters your briefing argues that he was really skookum and really involved and really knew what was going on but if my timing light here is right and you know maybe it's not but if my time it now we need that is all you need and the supreme court who are said one of the factors you look at in this pragmatic approach is the complexity of the charges this isn't like wire fraud here he's charged with knowingly and intentionally possessing cocaine and getting it from another wholesale dealer for his own distributions he is all motions made that clear which were an inherent and important part of that february twenty fourth one transcript but you can also look outside of that record at the motions in his involvement in litigation to see just how clearly and obviously really spot on question it's a checklist if there's a script for this and it wasn't followed and there were things left off so what is what's your best response to that there is a preferred script a prescription a magic words we know that but what about leaving off for example supervised counsel if you look at all of the decisions and i say all of them hold the defendant only have a general understanding of the offenses even the gerritsen decision we're talking about penalties not offenses and it's not good enough to have a general understanding that you could go to prison for a while so with panel to you this it seems to me there has to be something quite a bit more precise told to the person but i take your point that what where we may not have ever decided whether twenty years imprisonment which is accurate is sufficient or whether you also have to have pain of a new trial so a twenty years in prison plus supervised re it's not years so which is it when you when you said no no it's not correct when i said yes to be advised at the what is and what is not correct he does not have to know the specific rangers revised release all the has to know is have a general sense of exactly what he's looking at which is firing questions at you but here's the deal what is the government's position about what he does have to be told about penalties please that then it needs to at minimum understand the prison term that he's looking at and the exposure in prison that he's looking at other collateral thats it that is sufficient if the defendant knows that if he's been receiving in time the minimum if you know that he's looking at life in prison that's enough for the defendant to make a knowing and voluntary decision and look at gerritsen for that look at campbell versus virginia even or says only a general understanding is that there are three possibilities of how i can interpret what you just said and i'm trying to make sure i understand if if the judge tells the defendant you could be looking at life imprison and actually one possibility is he gets out in twenty years but he's on supervised release for the rest of his life that's a lesser deprivation of liberty than what the judge told him another possibility is the judge tells the defendant you could be sentenced to prison for ten years and does not tell him that he could be sentenced to supervised release for another period of  time of years after the ten years that's very different because in the first case the defendant knows he's facing a possible deprivation of all of his liberties for the rest of his life and it turns out that even if the worst doesn't come to pass he could still be deprived of some of his liberty for the rest of his life in the second example he's been told that he could have his liberty deprived for set term but has not been told that he could have much of his liberty deprived after that set term i can't tell from what you just told us whether you're asking us to decide that even a second case he doesn't have to be told about supervised release my vision is simply that being advised that your have a potential exposure of life in prison is sufficient and that's what immediately i publish decision but still relevant  as i understand but it's never the less relevant that's exactly what a i can see the logic of that i was this fellow instructed by the judge that he was facing when he waived his his right to counsel a possible ten years to life because i'm going to challenge the fifty one and he has been showing even before that hearing he was well aware of that said soliciting for other hearing not the first one right that's correct and there's nothing that indicates the court can hold a second credit hearing to protect the record  december fourteenth twenty four transcript seven twenty nine twenty forty transcript i mean they're both in december the defended was there was a meeting in june the court could hold a hearing to address what was addressed at that hearing that put that on the record and there was also a plea agreements that were offered and that was put on the record and those explicitly addressed the nature of the offenses and the penalties and you can look at kimmel six twenty two f second seven twenty which gave exactly that remedy second is that in your pa suppression washington state action about the shaking of the tool box you're correct but he prevailed in the state court on that search and seizure i don't think it's correct though that the basis on which he prevailed was because of the shaking o search i think you know i don't know the i don't know the answer that i think that what the state court judge ruled was that the officer did not have facts to support believing  asters points in my notes here nothing was said about a life maximum sentence at the time of the initial waiver in february it was not until december ten months later after the waiver had already been entered and everything had already been lost that that was brought up as far as the nature of the charges had to be very clear here the only thing mr would peel ever described in anything he wrote was the substan conduct of prison conduct of possession with intent to distribute there was no discussion of the key element of a conspiracy that there be an agreement on what an agreement is so there was no showing that that was something that doesn't my name being pivotal in this case the search and seizure issue it seems to me probably though your honor i think you're right and that's why having the waiver to reaffirm ten months after we lost everything was not very meaningful but i'm not so sure you are right you have th conspiracy issue then you may have venue issues if the if the arizona drugs aren't tied into the conspiracy because the conspiracy is bad so i'm not sure it couldn't have made into something been made into something a little more complicated by a train that attorney something mr what keil had no what i do about as far as how sophisticated a litigant he was if you think that matters the government does place a lot of weight on it and his brief i just for you to my reply brief you say don't need that for the verb i think that's right and i think the the main argument here your honor is it is only in the rare case that you look at the record as a whole you don't usually do that you shouldn't do it here reaffirming a waiver ten months later after you've lost everything that matters is meaningless unless the judge tells you you get a do over and he did once the strongest authority for your team on the on your argument that what that the information your client had about with opposing counsel ok counsel just one more question what many prosecutors do when a district judges they're working for example not going through the entire script on something where a script is required and ruhleben or for read a waiver or whatever is the prosecutor brings to the attention of the judge and error that the judge risks making and then the judge correct his cheat sheet so he did it right and i think he should have done was to call the prosecutor back and when he actually took the waiver so i guess the first time it was with the defense lawyer who was still still there and i was and the defendant and the judge and that's the only people that were present and the reporter thank you counsel for a case just argued is submitted and we'll take a ten minute