is between the two nine hundred eighty nine cases the four circuit in the ninth circuit but there's there's a more interesting case that fits right into that it was almost ten years later and that's the breton bark i'm sure i mispronounced that versus a polish case we reefed it but six families who were invaded by warrants no evidence was found the families filed  s action and that's when this starts hitting point on point with our case here today the tenth circuit judge says you haven't specified specifically pleaded what you need to do similar to one of your cases judge wright rigorous when you they wanted to suppress and you asked them to give more information the the so but he said i'm not throwing out i'm going to send you back for a redo because what you should have done is petition the court for two unsuppressed of the affidavits decide whether you have a bit of inspection or not and that's exactly that's exactly what happened what the ninth circuit opinion brief but another thing while it gives a great deal of patronage to the supreme court case to nixon and all the other cases saying that you need to weigh these things out are you arguing one claimed the wire to just asking to have your property returned and then tee it up this way why do you have to go this route the judgment the magistrate's judgment ordering a speech procedure which should alternately returned property for example our fifth amendment materials that they had met or fifth amendment has never been sent back to us it's a year later i think if this had if she hadn't been appealed to the district court and if it hadn't come here i think we would be in front of the regardless of the resolution of this part of it if you do not reinstate some of judge palermo's order we don't have any standing to do anything to bring a subsequent action for the return of your items and a rule for another rule forty one i guess  with one of the judges have been overruled and you go back over the same specific issues that you've appealed on with appeal on forty one we have killed on the on the common right are you asking for the affidavits to be unsealed with the  that it's that where you want to be yes lines that would be that would be our preference unless the three of you find that there's a word or two that she should have taken out where you never get everything you want we didn't get everything we wanted but we got enough so that we could have  it been moved on fast enough probably kept the business from failing are you alternatively asking for a limited remain and for the court to consider using the case by case approach but also considering the positive factors the favor of the  t judge palermo's order that's your first choice but your backup is that you'd like a limited re man to insist to instruct the district court to reweigh using the the case by case but also using get and i don't know what the district court and the district court decided we should get nothing and i think it's a frightening thing if that is allowed to be the law and really the ninth circuit is pretty much alone on that but sitting as a district judge i am left wondering ok i thought the district judge in this case did this case bice case specific analysis and just happened to go against you i mean what more did you expect to the district judge without compromising the inner underlying investigation i think the judge i think first of all that he owed the no on the issues of law it's not deneuve on the fact finder he was the only person ha direct dealings he had a duty he didn't find that the judge player abused the process he had a duty to i don't think he can set aside her fact findings without doing that his her swer specific there's of the reasons why work conclusory he said he looked at it and he's made conclusory and every case is you can't do that so you can't make a conclusory you have to give reasons if the reasons are so horrible national security is something you can seal your reasons but he must have given reasons to us and then to you if you didn't think well you could be trusted with them before throwing out her fact finding i mean that you would like us to remain and for him to give reasons explaining why under case by case analysis these particular things shouldn't be redacted according to the magistrate judge's rulings is that your third position if i have magistrate the district courts position once they give a warrant out the government owns it you can't there's nothing you can do unless there's an indictment the government owns a procedure from here to indictment that certainly isn't what any other that's that's  position i guess i'm still struck though how we're harmed right now why couldn't you just keep this up with a forty one she asked that your property be returned why do you need the underlying affidavits to make your case well we don't know we don't know that there will be a case but part of the case is that special agent has been going around telling all of the customers are will things about the client part of the case is that the business has been shut down part of the case is that the employees scattered when they had all these guns put to their heads so part of the case is why did they do it what can i show my employees and my customers so that i can stay in business if they can show them what what the what happened in the tenth circuit that there wasn't probable cause least for a layman maybe state open where we're headed with my questioning is if you have just talked forty one g motion to return property did not seek the affidavit in the motion to return property here wouldn't it be incumbent now upon the government to show to the court to the magistrate or the district judge reasons why this property couldn't be returned and couldn't you develop your information that way rather affidavits i think so your honor i think the forty one g issue right now as is is is pretty clear they see stuff they called attorney client privilege i don't i don't think that the affidavit says we're looking for attorney client privilege information but we've never gotten it back not one iota they took everything every piece of paper except toilet paper out of the home out of the business out of the warehouse and we've never received any of it they've closed down the ability if he wants to do anything with any of the planes which are now all gone millions of dollars a multimillion dollar business has been shut down because of the year passage i think had this not been appealed to the district court that we still been in judge palermo's court these issues would have would have come up right now and still bring your forty involve forty one g b return of property i don't think so yes ma'am i believe he doesn't believe we're here on the commonwealth and on those on the forty one g i believe that we're asking your are asking for unsealing of the affidavits not for return of proper ye s well that's two different things i mean i'm you'll have to i don't believe that that's what this appeal concerns perhaps i'm wrong and i'll have to study it but i still have that right and if you still have that right to bring your forty one gee why do you have to go this way well forty one j would have if we were not here if we'd not been in the district court we would they either would have given us the materials or would have been back in front of judge palermo that was the original motion we still do that yes yes your honor so why can't you just wait and do that then has been severe as a bevan's cause of action and that expires by statute of limitations before we find out the that's where we are we cannot in good faith encourage a client to follow bevan's without having the actual sworn testimony it would be that the order you should go in the you asked for the stuff back and then if you need the affidavits of why they have it then asking for her judge palermo's motion to be reinstated in full doesn't do that then i apologize for my ineptness on that but we right now we are deaf only here on those affidavits we definitely want them our client definitely wants to know if he has a bit of its cause of action and he definitely wants to be able to tell his clients this is what happened the special agent lied about this he said he had evidence of destruction of property the picture that comes to mind is shredding the records when he came by order of the court to discuss this he admitted that he didn't have that he had said that he had a picture of him moving records there's a big difference in moving records and we want to know what he said and if i'm troubled by the amount of time it's taken for this investigation to conclude and see whether or not there's going to be an indictment but help me reach the fine line going to be for judges like me i mean if we went with your position everybody would be seeking affidavits to be unsealed so when the bright line when when do i say yes when do i say no do i have to do a case by case review of every affidavit challenge now if you go back to the baltimore case in the four circuit there just aren't that many of them there are very few you see the very few references from either side it's just not going to happen that much is going to happen want to bunch of homes get right with guns to children's heads it's going to happen when a fourteen million dollars a year business shut down immediately and they can't move but it's rarely going to happen very few citizens have the ability this is pro bono right now because they've broken his back very few citizen said the ability to contest for him tighten procedures so it's not going to happen but what it will do is if a judge says as was said in this the exact statement of the judge in the order the government officials conducting the investigation are better equipped to determine what disclosures could be detrimental to the investigation in other words test move out of the way because the government is better equipped that's just not it i mean it's i understand for the men is a lot of work you've got the magistrate has to decide whether or not to grant that they lean towards the government but immediately afterwards even up to two thousand and four the citations werewolves are very rare the they're sealing records now they're sealing these affidavits and every tax case every six years a sealed record it's the burden of proof on these things is worse than the national security there's a fo circuit case saying for national security even the nixon case the president had to had to answer the court but now under this ninth circuit ruling which has been adopted only in one other circuit every other circuits going to including the language of the fist circuit for full disclosure transparency every other circuit is leaning or has a rule like the tenth circuit like the eighth circuit unlike the four circuit that you have to do that balancing in those occasions one when a citizen needs needs help this is an occasion or citizen needed happen but yes you're out of you precisely stated exactly what the case law says should be done but i mean given how long this investigation is the one about it does and ms mitchell will hear from government like please the court good morning my name is carmen mitchell an ever present to government in this matter what is the status of this investigation that apparently started in october of two thousand and fourteen with subpoenas and can piers to just be your honor i'll get right to that now with regard to this investigation this was a criminal ongoing investigation the affidavits an application for search warrant spoke provided to mash it judge palermo that was the first warrant the second warrant and the third warrant were provided to me i should judge stacey both of those magistrate judges found probable cause for the issuance of those search warrants and where they are  on false statements that there were shredding and and destruction of documents or something that wasn't actually taken place your honor as the affidavits are sealed in the application everything is sealed my argument here is the judge had reason to issued a search warrants the fact that mr smith now conflate the execution of the warrants with regard to his claim about guns a blazing etc that's two different issues here is it your position that that they were destroying items and that that wasn't true so what is your position on that point my position on that point is that appellant is trying to attack here  conduct by the team agree misrepresent that they were destroying documents does it say they were destroying documents and they weren't was the government representing that smith was destroying documents yes and was that incorrect so the government facts that is correct ya go that is correct draws a lot and i also wanted to answer judge alvarado your question with regard to whether or not this appeal before this court currently is about the them raising it by saying it's not time i have a whole timeline of the whole case so yes ok so i'm asking you and so if they may try to bring their forty one g now are you going to say that they can't bring their forty nine she for any reason i think they can revisit that your honor certainly they could that's your fishel position because you're representing the government and so you're saying that they can bring here without any procedural bar with regard to the fact calamita did deny the forty one gene motion she denied it they did not appeal that to the district court the only appeal from to the disc from the magistrate judge to the district court here was the government's appeal with regard to the issue that's at issue in this appeal here which was the their request to unseal the search warrant affidavit question a little on certain relevant organs but why is the government waiting so long to end by that's the problem you never bring it to him you liam leave this man out there dangling for three years i mean that that is not you not regard to search warrant affidavit appellate attorney here myself may rely on the record on appeal and that's what we have that's what's been raised the denial of the world forty one g mention has not been raised in a kind of speedy trial act doesn't to its burden to show that there was an ongoing investigation and whether and come up i'm sorry when how long does he have to wait to say it's no longer does he have to wait another year or does he later to five more years younger he's already waited  know i'm asking when is it the government's position to say this is no longer an ongoing investigation and he would be entitle to have the stuff back i mean are you allowed to keep it for ten years if you think you want to noodle around on it into district court on that i think it would be a renewal of the forty one g and or i mean that's what he wants here right he wants to see that the sealed search warrant so that he can challenge the lawfulness of the execution of the search warrant and so here he has those rights to go back instead he appealed and now here we are piecemeal litigation discussing the unsealing of the search warrant affidavit why isn't he entitled as the magistrate judge found to at least the boilerplate parts of the a sealed affidavits there's nothing earth shattering in those right your honor the district court which by the way must be reviewed by this district court i'm sorry by this court for clear error it made that factual determination that it was inappropriate in and just an unwarranted to to redact so much that you just leave the boilerplate here i mean to read back so much what he really did district court did review the redactions both prepare act i'm asking why i don't see that the district courts impractical where it's already been done it's already been all the works already been done by the magistrate judge so it's not impractical to say this is boilerplate and why should it be right or you or do you have a legal argument why the boilerplate should be redacted out i don't other than that the district court made that determination that it was impractical and i'm asking this court to get money in practical if it's already done because then what does smith have to that he's going to challenge i mean regardless he was going to challenge that issue on appeal right the extent of the redaction or that it was unsealed it was just merely redacted and there was only boilerplate language then we would be standing here discussing the extent of the redactions that were unsealed that's what we should be you know here standing talking about we have a policy in the fifth circuit that things are supposed to be liberal you know we make you do redacted copies of your briefs if you're going to seal something we make we we were very chary about sealing so why shouldn't if we somebody has already done the work and there's not a legal basis for that there is no common law right of access to create indictment search warrant affidavits that have been sealed that's what i want to pick up on so that's your argument but what's wrong with this case by case pacific analysis i think it would just be again time consuming and it would open the floodgates for piecemeal litigation one of the arguments here is that here we are a year later arguing that here in open court an appellate section but again that that case cited in my brief and again those both cases when you look at those together the supreme court says there is a reason for this finality ruling and i'm sorry statute twelve ninety one with regard to t only authorizes appeal from the district court's decision when it's a final order and the hollywood motor case company i cited for that proposition with regard to peace no peace no litigation that case discussed is further that in criminal cases there are only three exceptions to the finality grohl one is the reduction of bail one is a pretrial motion to dismiss the indictment based on double jeopardy and the third type a criminal issue that is appealable and is not  an on final order is a congressional immunity based on speech and debate clause you take that along with a dumbbell a case that i did rely heavily upon and we see why the argument here is that this court i would propose this review process sure your honor if this court were so hold on the governing test is the common law right of access test and not the first amendment test and that common law right of access tests is that the district court must balance a common law right of access against interests favoring non disclosure so documents can remain under seal upon a showing of countervailing into interest that outweighs the presumption of access again it doesn't have to be substantially outweighs it's not the more difficult standard in the first amendment which is that the government would have to show some kind of compelling government interest and so on and the denial is narrowly tailored to serve that interest rather the test would be the common law right of access test that this court did years in van whan berg again i would like to stress to this court that the deference due here is to the district court rather than the magistrate judge under twenty eight u s c six and hopes to shield itself from in further review they've got to give more specific reasons given in this case to survive abuse scotian standing here the district court did have numerous tips as you you saw in the record had numerous pleadings and that it reviewed and that included the government's basis for their request that it they just maintain the affidavits under seal and that was where the government argued that it would jeopard unsealing would jeopardize the integrity of the ongoing investigation it could lead to obstruction it would reveal the identity of witnesses it would require the government to give out or return information under section sixty court reviewed all of the numerous pleadings that had been handled in this it did its own de novo review it looked at the affidavits in camera and then it looked at everything and determined you know it did go  into here it did go into fact specific instances because it made that factual determination it determined that this particular investigation would be compromised by allowing access to the affidavits and appellant here has shown no clear error in that factual determination the order was specific and it was narrow the order specifically said that this district court was not ruling that in the instance where a specific and narrow when it didn't go through any of the portions of the affidavits and he didn't give any explicit reasons you know we remained in the test master's case for example for the district court provide more explicit reasons and to go point by point and if the if something was going to continue to remain redacted you had to you had to justify that and this doesn't appear to be specific or at all i think the district court here was really trying to do the right thing in that the district court here stead it reviewed it laid out those three cases and it said in this case it was the eight circuit t and so you know the court was very cognizant of the times new roman case of of the cases that smith relied upon right but being cognizant of cases and saying  things doesn't give us adequate case specific analysis so that we can do our reviewing job but i think your honor the the court had before the matters that were sealed and did the in camera review it had all of the arguments and implicitly adopted the arguments that the government had made i guess implicit is the somewhat of the problem we don't have an analysis we don't how do we review whether they bet the court balanced correctly if we don't have what how the court balanced well it had the arguments before it by both parties and then and when why should we apply test masters are precedent and in assuming that then i would argue here that the district court didn't make sufficient findings that were able to review here on appeal with regard to my final  prohibition of peace in the litigation and secondly if the stuart does court does find that a common law right of access exists i would ask this court to determine that the district court here did based make a factual determination by reviewing all of the pleadings and what it had before it including the affidavits and find that the district court did not clearly air and did not abuse its discretion should this court have no further questions or thank you  conference long before we get to this point to decide whether or not they want to indict we've asked for that we've asked for one from the u s attorney we've all moved years nothing and generally you would expect that to happen they can violate the rules if they want to and there's no but but they rarely do typically in this type of a case we're not dealing with anybody accused of violence or smuggling or anything like that typically you don't need a search warrant you pick up the phone and you say look i want these records and all of the income records unless maybe they were claiming two sets of books i don't know what they're claiming maybe if they're claiming two sets of books and that's a reason why they can't just go to the back if they actually and they use the word destroying their br had he decided he wanted to leave then i said would you did you lie to me did you lie to the u s attorney i mean you've said destroy it's been in all the stuff and i was i had just broken my hip in a wheelchair and had to actually get out of the to avoid falling just palermo's order he had to push me up with the look and he did and he left the office and we never did finish negotiating what we should do about getting the papers that we should be returned to us we have those papers  had nothing to do with this investigation long papers they did finally return a checkbook they were laughing to each other why do you grab the checkbook why did you grab a box that says attorney client privilege stuff  i'd be willing to bet my law i sense that the none none of these three magistrates put in their warrant or affidavit permission to seize attorney client privilege stuff so they just grab everything out of three locations and close that business down they for a very wealthy person has now been impoverished he's going to have to find someone on a contingency fee and hopefully he'll find an ethical attorney that will take a bit of an scase and if he does that no attorney is going to even look at it for bivins without saying that so the bil statute will probably pass if this court doesn't give him that access and maybe there is no vivants cause of action which is why there should be transparency the government's fallback is is no transparency and that's frightening and the government's position basically is this magistrate you've ruled you now have no say so anymore on your arrest warrant and the judge has said so too we can't have the responsibility of the district judge can't have the responsibility it's a horrible i believe abuse of discretion i believe that's the the government has pled that in their brief to her clear is that what you heard i may be mistaken i did not but would i'm fine with that if it's clear air not to give a specific examination both sides by the way even they even that when the third circuit which is the only one that's given any indorsement at all it's not to the level of government to state it and it's in both of our brief but both the third circuit and the ninth circuit neither one of them have ever said eliminate the balancing test completely it's so horrific it's so totalitarian even in the ninth circuit to penny and they just said look we've got to let the government do whatever the government's going to do even there's terrorist cases even there's cases dealing with