his united states against david gibson and jerry harris and i see mr nash and mr schmidt and mr whalen can you all hear me yes judge all right and let's proceed mr nash i think you're going thank you judge i represent david gibson was convicted of a drug offense and sentenced to two hundred and ten months consecutive to a sense of one hundred and forty four months he received in would go to a state court judge is does that regularly happen in northern indiana well i don't have any experience with northern and he had have occasionally i know u s attorney's office i think you know the affidavit then stated in this is significant the following which were the facts constitute the factual basis necessary to support the requested stated and those were exhibits for fifty six and seven to the government's response to the motion to suppress at the docket number one tonight the court order drafted by the officers of the drug unit stated it appears that the affidavit has been made in good faith in furtherance of a pending criminal investigation again it does not say probable judge she stated that this was an effort to circumvent probable cause and in this case we have jones decided was two thousand and twelve decided in two thousand prefers ins cell phone we quired probable cause by night by two thousand and seventeen when these officers applied for these court been numerous district court cases using this hybrid theory that they used here and they were rejected all the vast majority of courts and yes very definitely the mr smith's motion stated very clearly on three different occasions which are cited in my brief that it lacked probable cause believe i don't know what you mean by used if talked on them i don't know that there was had but they're good evidence that your client handled the cell phone overwhelming that was the premise of the government's ca transactions i don't believe the record reflects that but mr schmidt might know the answer to that who better so how how can he have standing to challenge  where the evidence before the court was that there were at least a dozen people using the cell phone that it was being used for commercial purposes and there's no evidence other than that there was an e mail from a lawyer to the prosecutor that wasn't responded to but no other evidence that the cell phone was personally used by your client but it depends on what you used he context in the st stash houses which where there's an affidavit to search which i see as similar to an affidavit to search the phone here that the phone was not tracking your client for say it's a it's a it's an affidavit in a search warrant to search the phone in the stash house context where there are multiple people using the stash house for commercial purposes we have said there's no expectation of privacy how does this phone on the facts before the court differ from that context well if i may step ahead of myself a bit in answering your question in the ditch record the government basically conceded stand it's it's perplexing to me that they can raise it now for the st time on appeal i think they may dispute that they conceded it but well let's assume they they didn't and we get to the the stick anting portion of it how does this differ from like this at the stash house context how is there an expectation of privacy by your client in this phone that's being used by at least a dozen people for commercial i don't think i don't think the fact that other people used his phone a diminishes his expectation of privacy in his own foam their case these court orders were valid in the light jones and all the other cases regarding tracking this was two thousand and seventy these officers if we take the word of justice alito stated responsible law enforcement officers take care to learn what is required of them under the for them to shape oh we didn't know what these dead troops were about we didn't know anything we were ignorant of them and pass it off to their partner states attorneys isn't credible well in lies or in line was twenty three if i had correct guys one by both guys by a confidential informant one was seventy five days old at the time the government or the locals apply for the court very recent one was to two days before but that would not have been probable cause i don't think the district court clearly did not  affidavit and once learned in the suppression hearing and say that that was in the mind of the state court judge in granting probable cause and we don't know what the most important fact here is that judge was only ruling that the there was a pending criminal investigation that's all he had to do according to the request that was made of him in the order that he shot him all right thank prosecutor there for twenty two years in northern indiana i practice a lot in northern indiana and local even in federal investigations a reteam lee go to state court judges  that in the january th e mail there is no reason to response to that e mail because they was they knew that i correctly recounted what he told me in court secondly the government really didn't challenge standing in the district who are and i would argue with mr nash that the government has forfeited that argument on appeal they're lying on the go greases united states and other cases the with respect to the expectation of privacy the government itself concedes if the defendants possess that foam at any time and they have standing and the government itself conceded that the defendant particularly jerry harris possess that phone so i think the standing argument is clear there we forfeited and losing argument for the government in my remaining time i'd like to address three other fundamental errors below those having to do with unreliable evidence unfair surprise and an unjust sentencing disparity runners as you know drug weight has a dramatic effect and gyve and calculations certainly very true in this case if you're the level went from fourteen to thirty four because of an unprecedented methodology for calculating relevant drug weight at sentencing the government on a phone call extrapolation in a case where there was no phone call ever wiretap not a single one no phone call ever recorded not even with the twenty eight control and no witness every testified that the phones we used exclusively set up retail here when sales so there's two fundamental parts of the unreliability of what the government relied on to get above that  gram threshold in the case that only involved fourteen grams of heroin seized the st supposition was that every phone call listed on these toll records eighty four thousand every one was exclusively for heroin distribution that's in the pre sentence report paragraph six but there is no evidentiary basis for this assumption and no proof from the government that every phone call was for heroin distribution so the contrary the more reasonable assumption be that some course of these calls were not related to heroin distribution at all simply by using the phones in the hands of multiple persons and using them as cell phones during the  art of the day just as i use my work phone for certain personal calls we all do that's the reasonable sum of the government submitted no evidence and has had no evidence that he's own cause for exclusive that this is these are stash house phones there's there's no evidence that they were being used for illicit purpose they're all the evidence points to estimate and yeah it's a gross sort of rough estimates dividing the total number of calls by an assumption of four calls perth transaction and a certain weight per transaction this is all ball were you know am i going to be resupplied know everyone had to be sort of retail here when transactions the margin is small here if less than five percent of the calls were different you get to a different drug wait in a different sentencing that the court would have imposed the same below guideline sentence regardless of any kind and this was substantially below the low into the time your honor the district court's statement that he would very to the same range based on his consideration of other factors i read due to his calculation with respect to the organizer and leader mr harris being only a manager or supervisor calculation i read it as directed to all of them i base that on two things your honor immediately before his statement he's talking exclusively about the manager supervisor determination and the other reason i doubt that statement by the district court judge applies to drug weight is how dramatic it is is judged really saying and he would have sentenced mr harris exactly the same way even though the drug levels would have been twenty levels less but the johnnie family would not have been twenty levels less if this were just based on williams this testimony that you didn't object to for the guideline calculation that was not that was only used at trial i mentioned as an alternative methodology to get to the over one kilogram and at most it produced  weight difference would have been dramatically different without this phone call extrapolation yeah the thing i think we have to remember is the government changed its game at trial it had an expert witness that the defense w unfairly surprised by no pretrial disclosure no report nothing went from six calls per transaction to vent sentencing went to four calls per transaction simply for no other reason it based on trial testimony reliable trial testimony is not true one agent you testified about numbers of calls didn't say four calls was the correct number he said as best he could remember he had no real strong recollection one to fall for cause generally but somewhat d more and he could remember specifically that was his actual trial testimony all you one page forty nine so but he also  that some were less so he took the number six as a reasonable number based on that on the testimony of what was coming out about how many numbers it was an average but he didn't take the four he took the six i might say your honor that the controlled buys in this case were point thirteen percent of the alleged transactions that is not a valid sample size to get a valid sample size to just a you would have had to have had a sample size twenty times bigger greater then i have one hundred and eighty four transactions here each in scott was talking about twenty eight controlled by number of calls it took to complete a deal was three and so you know i guess to the extent we're complaining that it was forty four was unreliable the court easily could have gone three but that's kind of the theme of what happened at sentencing which is the court gives the benefit of the doubt these defendants and it's building in this question and judge sykes and you talked about it being a ballpark estimation and that's what the guidelines in this court's case all talk about it talks at and she'll and i hope i'm pronouncing that case right says it's  a reasonably imprecise estimates are permissible and that's what the court had here the court had testimony that when the phone rang it was customers and the ets ph three hundred and sixty one dollars from williams  question is about both of the phones these defendants say when the phone rang it was customers judge saini if i mean i read the sensing transcript the same way your honor does and i do well on it just read that quickly because i think it's important the court says on page thirty three and i apologize for turning my head the court would also know that even if i calculate that the guidelines three inch differently in the st instance i would carry did the same range based upon  about the organizer leader it's saying if i erred in the calculations the guidelines i would have gone here anyway and you know just one other point of clarification on that we're not talking about a twenty level swing district court found one even if defense is right and the court should have been bound by the district's finding one kilogram we're talking about a four levels weighing so there's not some mass disparity in the court's sentencing and there's not some reason to think that the court wasn't being truthful when it said it would have to impose the same sentence range if it had been four levels lower it was within the guidelines range i believe it should have been four levels lower yes judge they need the evidence isn't in the record but i assume the court just will appreciate the background information of i've talked to the prosecutors this did not become a federal case until the state authorities well into it and so they went to the state court judge because that was an entirely stated best occasion at that point  you know mr gibson says the order doesn't say probable cause and it respectfully the order on the government appendix page wanted to says there is probable cause to believe that the user of the cellular phone has engaged in didn't say it and there wasn't sufficient evidence to support what the court signed saying probably i did i apologize if i misunderstood what he was saying that probable cause determination is waived what the defense argued down below is that there was no probable cause tying these particular defendants to the phone the position was you know there's no evidence that we were involved in any of these deals or that i think the example they gave us listen we're not and i'm sorry this state court judge was actually not a magistrate i keep making that mistake they gave you would give great deference to the state magistrate and their work to control and i think you know to the extent that you're looking for even more evidence t to the phone it's not just that there are two controlled by the st by involves three calls to this particular phone and each has some substance to it the st by says the st on the st by is you want to buy drugs the next b ems i'm sorry the next call says go to this location the rd call says are right someone's walking up with drugs and then the next buy which was the day before the affidavit is prepared had two calls the st saying you wan honor your honor this judge saying even asked about evidence that they personally handled a phone there is no evidence at the pressured hearing that either of these defendants personally handled so there is evidence that twelve individuals handled the phone and there's certainly no evidence that these defendants handled the phone during the relevant ninety day period what about eight in the smith argument that he spoke with the prosecutor on january th and the prosecutor said that his client had possess them and that's what the e mail with your honor i can address that as being discussed with the prosecutor you know the problem with mr smith's position is there's no evidence in the record supporting a prosecutor could session but i do want to address this issue because i do think it's important because our integrity has been called into question rightly or wrongly well wrongly what the prosecutor said is that we do not dispute that mr harris had the phone and there is evidence at trial that shows at some point harris did have to phone there's evidence at trial that at some point gibson had of but that doesn't give them standing to challenge the d cell site location for these ninety days what they're seeking to suppress is the information gathered during these ninety days they say that was illegally obtained and there's zero evidence anywhere that they had it during these ninety days we frankly couldn't pinpoint who had the phone in every instance except for the rare instance that the phone was that either of the locations where they were residing during these  thought there was some evidence that yes your honor i can't say for sure that these ninety days i will say during the trial again not the suppression hearing there is evidence that the phones were near their house says but mr harris for example he's living girlfriend is haleigh hampton who is also one of the co defendants starch in this case and so she has the phone that still doesn't give him standing if you will to suppress this evidence she would have an argument then there is evidence i can if he had this problem but was sharing it with twelve others would that matter you know i think that's a good question your honor i do think his expectation of privacy would be severely diminished because of that i i think he probably does not have a response speculation of privacy when they're dealing with twelve to fifteen other individuals here or in the phone but he can't even meet that i don't know the answer about the practice of that i'm sorry i typically do you know with the hammond judges to the extent that dealing with any of the judges i'm happy to ask the question of our prosecutors if you like you know i argument the st argument after the evidence was presented was our position that they lack standing and what i believe they're relying on is judge julio us state prosecutor isn't it true that you have standing to track your movements after carpenter and the prosecutor said yes that's true and that that is the law's near as i can tell if you have to phone and it's your movements being tracked you have standing to track it at no point in time did we ever these defendants had this phone during these ninety days i think if the court gets the transcript of that it is clear that we're pressing our standing argument all the way through the defendants have also identified that in ruling on the motion to suppress the district court relied on some information that was not in the affidavits and not before the court at the time the if the defendants and that's why our position is this argument's waived because it's ambushing judge should giulio and is factual recitation of the facts if the defendants had made the argument of this st affidavit fails to show probable cause sufficient to meet the illinois v gates standard i think judge julia would have initially said all right i'm going to focus exclusively on the st affidavit and he would have set forth the facts in the st affidavit that argument wasn't raised and so is sentence argument just to clarify the record a little there's been some argument that we asked for an extremely high sentence and that shows we didn't believe that these two individuals  or something along those lines the timing of this is important so it docket entry to forty eight the government asked for four hundred and eighty months for the next documentary to forty nine government asked for four hundred and twenty months for hair and then gibson gets sentenced and that's documentary two hundred and fifty seven dollars and judge julio gives him an extreme downward departure which certainly is right and goes down to two hundred and forty dollars in this case going on we're asking for three hundred and sixty dollars and that's a transcript page ten and that is consistent with our position on the relative culpability of these defendants gibson it just got in three hundred and eighty eight months and then we changed our recommendation based on that to say no if you're going to give gibson three hundred and eighty eight harris you get three hundred and sixty and that's the court did recognize its discretion to consider whether any sentencing is unwanted or disparate it maybe could if agreed with mr harris and said well the fact that gibson's continues to deal drugs does entitles him to a higher sentence but it certainly wasn't outside of the balance of discretion for the court to say i have to think about this one hundred and forty a situation which asked him to conclude that there was a thin faced ongoing criminal investigation and therefore he should issue the order and that's what he did i don't think you can give the district court judge's decision and he difference either no matter what mr whalen says the district court judge made a finding of probable cause using facts that had not been presented to the state court judge in ordering in in giving the court order you rely on other facts it can't color that any other way and the record is replete in this case that mr gibson handed out the phone possessed the phone and not being able to give in to the state court difference in its ruling undercuts a good faith effort in the fact that the government used just the bom rejected theory in two thousand and seventy in the face of numerous district court decisions the supreme court's decision and jones suggest that no good faith exception could be made but the most important thing is not giving any difference in this most unusual case one of the more unusual things