states you know with significantly larger minority populations but we do have the constitutional venue we need to locate a prosecution where the crime took place there is nothing wrong cases that we have historically on this really don't touch upon outbreak bassam doesn't touch upon it and neither do the other cases from this circuit really do seem to be arguing that because the the narrow it was composed largely of individuals of a different race almost that there should be a presumption implicit bias are there any case that support that there are i didn't find any specific cases that talked about it there were several i support that well i think saying a presumption is perhaps taking it a step too far a step beyond where i'm trying to court to go then where are you trying to go if you had a presumption you're asking for a change in venue based on what the composition of the finale are looks like because the composition was largely white that alone seemed to be the basis based on my review of the transcript for your argument that it should be moved it there doesn't seem to be and you haven't argued that any questioning of individual members brought on implicit bias so if it's not a person what would it be right well when that case problem and it's always going knowledge even then you know it does occur to me the first of all there's been a lot of social science research done on the implicit bias over more recent times and it's something that we've become more aware of but on the other hand traditionally with jury selection in for a two year as long as the judge squarely asks the furor you know are you do you regard yourself as capable of pretty much shows that every single one of us has implicit bias and so i don't know what we do with that fact well at that point i think then you know the standards under the federal r near is you know not a minority and we have a minority defendant you know the standard for granting a change of venue severely law i don't know how many how many people of of the defendant's own how can you make those two principles consistent with each other if you're saying if you walk in the finale or is composed primarily of a different race than the defendant that there that alone shows implic well first of all most of those cases have occurred prior to this more recent research we have on implicit bias and so i don't think very many of them except perhaps the nettles case which was twenty two years ago  really sort of even touched upon those arguments at all and so you know that becomes something new that we have to deal with now that we know better we need to do better in terms of potential and so if the defense counsel is specifically concerned and raises that concern and says look you know i don't think my client's going to be able to get a fair trial here and there's nobody that can relate to him then we have percent right new albany but again as i said they also discussed moving it to terre haute which is you know substantially larger minority populations at least he has a better chance of getting you know a percentage of people court in this circuit said over twenty years ago that's not enough and i want to jump quickly to the issue that's just the quick the witnesses and point out that of the thirty one witnesses only four now were from indiana so it's really not a matter of convenience twelve of them are from illinois five from iowa four were brought from prison and two from missouri two from the f b i presumably one local at least one or two for one and the others from kentucky new jersey you know i also the ones who had to fly in for the third day of trial if the motion had been granted on the first day of trial they could have just received counsel and i'm also concerned really sort of and i think the court should be very concerned about the appearance of impropriety about at least the court pamela don't ask for the united states for addressing the merits i like to make a correction to one of the states made by opposing counsel as to terre haute terre haute is not more diverse southern district of indiana began this investigation and worked with the southern district of indiana united states attorney's office and those two agencies worked together during the course of this investigation was that the first f b i office to be contacted about i don't know if you've ever tried in times online tests but you know when you do these tests i suppose perhaps the jury could be easier than i or get asked could be asked to do that you discover that you're making assumptions about people with your quick thinking so to speak that issues of bias or not i think is that you know it's something that our attorneys frequently frequently do and that's a strategic choice whether or not you want to confront that directly or whether you want to use a more subtle approach to determine if there are members of the sense counsel had challenged as biased i do not believe so your honor i mean that's the difficult thing about this theory is that it would actually not only call into question a great number of juries that are selected but i don't see why it wouldn't be quickly appl it shouldn't be a harmless error there is an overwhelming amount of evidence against this defendant and any reasonable jury would have convicted this defendant based on the evidence presented at trial so given that even if this argument and i don't believe that to the best of my recollection from the trial and working in the transcripts that feed to kind of counsel made any challenges for cau government that's only part of it all right they have teen tower dumps but they also obtained some historical information that carpenter would apply to historical sell site information and was later obtained by the government with a twenty seven zero three you know the core bit more carved out tower dumps than ruled on it one way or the other didn't given the green light they just said that's not what we're doing here that's correct your honor i think in that distinguishing factor carpenter doesn't apply to paradigms and there may be a situation somewhere down the line where obviously the courts are going to have to address that issue but given the facts of this case and the overwhelming amount of evidence against this defendant and i don't the case here today i don't think it's a case for that know i mean the court is showing some real it to read between riley and carpenter and others who think the courts are very wary that cell phones may be are just in their own category of things that might be searched or information might be so caution even if it's not required the government does decide to obtain a warrant just to prevent any potential issues even if it's not required by law understood location on the days of the various offenses and if you want to see where that is it's in the just report docket three twenty it's the second exhibit it's in the affidavit for the search warrant and that was  asked did you do did you request this information actually said yeah i requested information and this is before even the order was issued so so they are working together also there's the issue of the crime decks which is agent is is a bit of a stretch and just i want to point out i know that the judge wouldn't judge conduct if you were on the curtis case recently and this sort of had the same issue in the good faith exception was applied in that case i get it i think it was appropriate here however as i pointed out the subpoena was issued or that the order was issued under the act for the date of the same day the d o j is saying you can't get this stuff without a search warrant we're great probable cause all right thank you very much a q we appreciate your acceptance of the one minute we appreciate your efforts to get here legally