are right we are i'm not going to watch the clock that closely because it's important that everybody has a full and complete opportunity to make you make their positions but you time productive have how does that differ from the government's use of informants in any other kind of an investigation i mean judges know that most of the people who's become informants for the government usually have been involved to some degree in the criminal activities that the government is investigating so i'm not sure i mean i was going to say in your argument castro was a very high ranking member who had turned he but how does that differ from the district judge at the initial stages of a major organized crime investigation to predict where the investigation is going to go and how affective this particular informant will be in furthering the objectives of the investigation and it seems to me from a policy standpoint that number one this is early stage of the investigation it would be very difficult to do as a matter of fact but secondly i'm not sure that judges are very well equipped to make that kind people always have a motive to fabricate you've got to deal with them with different in a different way than ordinary witnesses are just not reliable they lie and pull the wool over everybody's eyes usually the defense is yelling this is a liar you can't believe anything the person says i mean i've heard that a thousand times i've written a lot of things in those cases informers unless they're corroborated are useless worse than worthless because they can reckon otherwise good case so it seems to me that overlaying informants information with a very valuable ally and reliable information such as what you get from electronic surveillance is necessary in a larger sense of the mission of the criminal justice system which is to find the truth instead of just nonsense that's generated by info what maybe that have to be the case i mean it's well known in the history of the investigation of organized crime that the mexican excuse me the new york mafia the italian mafia is really giuliani likes to call them was not brought down until they had everything on tape john gotti for example skated skated in skated until they were able to corroborate people like sammy the bull gravano with everything on tape and it was only then that the criminal justice system functions so it seems to me that having things down in terms of exactly who said what when where organized crime over the years has been informants lying and pulling stunts with evidence and we see people who have been released from death penalty conviction places jailhouse informants emerging apple who just make things up right and left so it seems to be that it's valuable to have things things are submitted well for years doing nothing but reading every electronic surveillance application and the united states when i was in the justice department i read every one of those and every one dealing with an informant has ok well i guess that there were various racketeering i prepared my own charge as a result but for example go ahead my client state i see what we're racketeering acts counts at the same time it is considering the convictions on the narcotics counts in fashioning an appropriate sentence under the guidelines for each of these defendants since we have multiple counts of conviction is sort of the classic problem that we have in historical conspiracy cases where people are talking about drugs that they're distributing but we don't see that they're not one enough method time they're talking about them and  the district court rely on the testimony of the los angeles police officers who were these games in essence extrapolating numbers and then taking a conservative  all right thank god thank you thank threatened or evidence that may be tampered with and that information is brought to the attention of the court by the government that's improper no your honor i'm not saying that's improper i'm saying that without without further information without something to show case in los angeles and i myself walked in the court one day without the knowledge of our state usas and i got to see the judge and everybody object except my usas to work for me i went and saw the judge this week after i had to make a trip to washington d c to meet with government officials i laid a gigantic submission on the court look at it and said you're right you don't need to turn it over and i understand why you've submitted it in camera both sealed gone it came up and it's and i have printed a page of sarkisyan case that we've looked at the sealed material there's nothing the defense needs to know about go by and various is probably still complaining that they don't know what that was all about so you're going to have to trust me that there were reasons that caused made it to submit that in a sealed fashion and there were reasons that the judge with it every one of them is justified and what i what i should tell you is that we will examine all that material and make sure that the rulings are appropriate and resent anything in there that should have been given to the defense i would assume we would take appropriate action  that wasn't the type of control standard that was at work in this case there were a number of materials that were disclosed where things really should never have been the feelings of we can't rest we don't have indications that an affirmative decision has been reached that a lesser also for the use of the firearm counts because they are predicated on alec you must not enjoyed mccoy i thought was very instructive and i thought that the actual fact pattern mccoy was a little bit different hundred sixty eight and created rico and it made certain factual findings with regard to the impact that organized crime activities have on commerce are we to completely my question then about the one nine hundred sixty eight legislative history because congress was looking at organized criminal behavior in prostitution gambling narcotics trafficking loansharking all mafia meat to the restaurants or taking over the unions that operated the trucking companies in the garment district in new york they were looking at sort of the overall picture of the enterprise around the parking lot of the seven alarms were trying to hijack a car carjacker car will crown the congress and extending federal jurisdiction over carjacking properly did so because of the interstate commerce aspect of  on the streets of los angeles and so if we don't look to the commodity if we just look to the commercial transaction but the problem is that the cases that talk about  the way i understand the facts correct me if i'm wrong the federal government set up videotaping of hotel rooms under a couple of different circumstances one involving the running of the room by the by an informant ostensibly working for the government other circumstances which rooms and without my knowledge there was a video camera put in my hotel room doesn't he have to make that you know that's one of the that's one of the arguments but even in the cases where an informant rented a hotel room when you have times that happened when where you know all that and it sounds like it's not clear on the record according to you you know it's not clear at the total number but it's certainly clear that there are certainly more than one and maybe as many as five you know that's why it seems that we would know from looking at the record why don't we know why is it may be reason could be wasn't ever developed in the record when the government run of the room and when the defendant's right of the best way to come across in the this record that's just one of the arguments that was not i mean all right and i was raised in this report so you attack the whole the whole procedure suspects are not made on the video no no no are this a very simple question you're moving to suppress and when i used to move to suppress evidence i usually with try to file a declaration from my client which said exactly what judge or subject your clients to cross examination you tried to do it through using the statements that they made on the tape recordings themselves but my question was really the one that i  situation to control system case how do we know that castro is not in a position to provide exactly what they're looking for i mean it's very argument just a touch more sophisticated than the way you characterize it the argument begins with the fact that that there was a misleading it is necessary in order to continue the investigation to employ wiretapping because we can't get it by other means and as correct and the way that this wiretap affidavit made the point i think judge tr going to be that you present a c w one is not an upper level member you say many of our incarcerated are running around activities inside and outside the institutions although one of the cooperating witnesses received calls you know i received a small number that the government was proceeding on a theory if i understand it correctly that we were dealing with the enterprise that the statute defines as a group of individuals associated in fact although not what we had were a group of individuals some of whom had more authority than others and i i guess that's about as close as you can come to describing the hierarchy of this group but apparently that requires a meeting of some sort and the consent of some other people before it can happen and that's what happened at some of these leaves rights correct ok give me some other of people outside of washington don't have any idea how serious congress was  even though there may be current criminal activity going on and even though it may be very serious criminal activity all the stuff that's that's listed here you can't use it unless it's necessary which means you can accomplish the same goal in another way that when it means you have another way of getting this goal without using this intrusive method we're not going to allow you to use this method but the goal has act not and here's how serious congress was first of all we have a government that works with checks and balances which means we don't nobody trusts anybody else in the government so we're not going to trust the executive branch just say it's necessary that's the end of it so first of all you not only have to show it's necessary but then you have the congress created another check and at that time it was that every application head hurt had to be personally reviewed by the assistant attorney general in charge of the criminal division and the reason for that was so they could get their hands on the neck of some assistant attorney general in washington d c and political sass and i that person if wiretaps were being abused and that's when that's how serious they were about all this stuff you know this was tremendously interested in if you the executive branch with a history of wiretapping martin luther king jr and all the rest of that kind of stuff want to use this you're going to have to show that it's necessary and that's going to have to be first signed off on by the head of the f b i william webster used to examine every these things personally then has to go to an assistant attorney general  water that down and they let it go to deputies but then the whole damn thing has to go to a federal judge we crossed branches of government now and that's why it seems to me that they're making this argument that if this is the case if congress the serious about the sense that you can't use this  necessary that the executive branch not only has to go to a judge but has to go to a judge openly and fully present the case on the subsidy and they're saying this is too cute by half because you had you call this a hierarchy talk about high level people and now the way the whole thing plays out castro is in a position to get a whole hell of a lot more men from asia and then this affidavit makes it appear so and going to a judge they say this is an honest you should have said mr castro is is a high  upper level number in the hierarchy of the organization who has all these kinds of acts this is an everything else and then if you want to show necessity at that point you have to say how ever even is well placed in as many contacts as he has he still is in a position to give us everything we need and here's why one two three four five and they're saying you didn't take necessity honestly here or seriously that you tried to slide this whole thing and your answer is which is good at art a furby is this guy's a low level muppet doesn't know anything that's why we have to use wiretaps that's my fair reading he's not in the hierarchy he's not the upper level messenger and he was that person and that was the best way and indeed the only effective way to get that aspect of the investigation i just want to spend a moment on frank's issue as well because i think it's relevant with the description of castro's condition his credibility is information and so on i think the court's case and it's probably the most instructive that was the case which and you're saying that even if that had been disclosed you need to corroborate and get additional evidence would still have existed so the omission of that information didn't really matter six five nine there's an excerpt from take one fifty seven where castro enshrines are talking about the rental of the rooms for the meeting the next day and tried to kind of get at the money and tell castro where it  exhibit fifty six which was a tape where burrell says he's going to look for a place for the meeting and castor discussed making a reservation but it is not clear from that were from the of circumstances i don't you know what are you saying it's ok for the f b i to go set up a videotape of somebodies house so long as there's a whole bunch of crooks there and though we can argue that they don't have any expectation of privacy because all the reasonable expectation of privacy is i think that it was mr walsh who said that one point the jury was instructed look if you find either a connection to the state congress with regard to the drugs or telephone calls first to videotape meetings that something like eighty percent of conversations were not the governments were actually transcripts and we sat in our pleadings that a lot of the discussion in these conversations were about perhaps there might be some prole discussions occurring in those hotel rooms you have just figured out with patriot act number two or three screening well and that's that's scary what about the government's argument that even this case before you with him very very different because of the nature of the intrusion you don't have a brief business encounter you know a telegram you have fourteen meetings some lasting as much as five