crime a warrant is extraordinarily overbroad as a result of the execution of that warrant evidence the c than a thousand and one ends up in the primary conviction against him being convicted of something which is also not a federal are not in this case but the other participant proctor pseudonym thanks for the name was in fact indicted for extortion and there is not much doubt that there was sufficient showing that there after their review of trial and they realized that they could not possibly make one of the elements of the offense which is the element that was set out of and are always being in fact the jurisdictional element but at the time of this search warrant proctor was still under indictment was you know no in other words the they received information from the undercover operation director proctor based upon that information they have team this search warrant be dismissed because there was not a sufficient showing of that missing element the government's position is kind of interesting to me i think very clearly this warrant did not show probable cause because that element was missing the governments in the district court assume that the element was required when the district court then found there was probable cause for whatever reason it did which i think is obviously here the government then jumped on the bandwagon and said well we agree he went through the history of the statute to some degree and actually quoted some law review articles with regard to that issue so in this circuit there was absolutely no doubt whatsoever that at the time that this warrant issued the narrow have been decided all year and a half to two years before there was a specific element which was required which could not have possibly been made out under the facts regarding the i have no doubt that there was a showing of obtaining in virtually every case of the government points to his being in a store she face particularly following an arrow but there is also no doubt that the language the pinero use was was unequivocal the statute requires the attaining statute as are later wasn't shy of law and there was reference to law review articles discussing this particular element so this wasn't just an aside or dictum in the case this was a specific analysis of that particular statute and the obtaining element as being a required obtained there clearly was no probable cause because the element was not only missing it could not have been established under the facts of the bush investigation and so there was an element which was clearly missing that is not only significant with regard to the sufficiency of the warrant itself but is really critical with regard to the leon analysis because the court knows one of the standards for leon not applying is that it was so absent and probable cause that th crime and could not possibly establish federal jurisdiction you don't have to do neat weighing of the factors reliance upon these judicially or by government investigators was completely unreasonable because there simply was no federal crime that was involved so i suppose the supreme court's decision had come out the other way now it was after the fact in fact very very close they are like a search warrant here was november twenty first when the hammer and the oral argument in that case in washington was early december or so so the question is is that a fight at that point now under the government the government filed an amicus brief and indeed i think even this was for general hear that argument and took a position consistent with position the government taking here as i understand it suppose the case that came out differently would you still be able to make the argument you're making actually i think i probably would because of the following what happens you know we live in a situation where we have circuits the circuit courts are required to use to estab law within their circuits the lower courts are required to follow the law within their circuits if there is a somehow a dispute between the circuits the proper remedy is to have the supreme court decided if it's some point down the road the supreme court decides that in fact the way it proceeded to obtain this warrant when the law in this circuit was absolutely clear that this was not a federal crime so there would not have been probable cause at the time this warrant issued and the question if you're talking about the good  very difficult for me to see that the government can claim good faith in a situation in which they purposely avoid relying upon the ninth circuit authority and in their own minds think that they can rely on seventh circuit authority because they warrant knowing that the law in this circuit had been settled and pienaar but that's the situation that we find ourselves in and because of that we not only have a warrant was issued without any probable cause and we have a warrant which cannot possibly satisfy the leon requirements three bases one because belief in probable cause was wholly unreasonable in this case african art you have a second basis because this circuit has used the here you know if there was any effort made by mr proctor his counsel to dismiss the indictment based on the morrow i have no idea if i did not represent mr parker i i know that that i sent a letter after shriver came down suggesting that that unbelievable over breath of this war because they were looking primarily for computer information and they have a direction in this warrant that they are to look at basically every piece of computer information to determine the precise contents so that if they were to come across a document or a file which clearly had nothing to do with the matters they were investigating they were still required under the direction of this warrant to examine those materials to determine the pre contents of the materials there is no excuse for that if into the in the context of a paper investigation that would have been a warrant that told them to read every line every sentence every word every letter within that office even if they could tell that it had nothing to do with the investigation well i hear you say that i'm not sure i understand what practically you do in fact when there is a search warrant on paper flip the paper and maybe you can figure out more quickly because the nature of paper you don't have to decode it or anything but but the word itself was pretty specific with regard to what was being sought the problem raised is what is it you have to look at the figure out whether it's not within the category of being sought and as a practical matter how could they more narrowly defined it i think very easily run it because as an example one of the things they could have told the sourcing agents to do which is really what what the agents are told in a paper cases they could have told to look to make an examination of the documents a sufficient to determine whether it actually fell within those particular categories as an example if they were to come across a copy of a medical file that dealt with mr pelecanos or his family members simply looking at the using simply looking at that document for a second you could tell these are medical files and you could flip through them that's what you would do in a paper case but if you sat in that paper case regardless of that even though that's what we're looking for look at each piece of paper to determine i with in a divorce file or letters or any other of the numerable cases that mr pelecanos was working on having nothing to do with this case by including that language as a direction to those searching and seizing agents they transformed what could have then a and one that was as broad as could possibly be imagine now they even quote a case it's a tenth of a case in which the officer was looking for on a computer for certain information and came across  child pornography and then he started opening files dealing with child pornography and the tenth circuit said well he couldn't do that it was beyond the scope of the warrant if that had been vis warrant he would have been required not along not only allowed to he would have been  required to open each of those child pornography files because this warrant said regardless of what this material is examine it to determine its precise contents and when you have a situation like that what you're going to have in  case like this is undoubtedly ninety nine point nine percent of the material that they seized because they seized an incredible volume of material is going to have nothing to do with this investigation but despite that and despite the cursory review which would computer data i've never seen a warrant its holder as such i've never seen a valid warrant that told the cia agent that he should view the precise contents of the materials what the warrant tells them to do is to search to examine the materials of some fashion to determine whether do more than they're legally entitled to do and maybe it was an unfortunate choice of words but those are the words that these agents are armed with when they go in to search this particular office and so what we have is two problems one is a warrant that is void out of an issue and we must remember that the materials and must be excluded and secondarily because of the leon issue because the warrant is overbroad leon indicates in the situation regarding an overbroad warrant leon is not applicable it's the i have less than three minutes i'd like to reserve two the helicon a search warrant was then executed in late november scheidler came down in early february prior to shively there was no motion vimes to proctor or his counsel to dismiss that hobbs act indictment prior to was invalid that you your theory that you don't have to have a third party receive anything to the extent that yes we're dealing with that type of intangible right to operate a business free of threats and  make clear that depriving the victim of that property is not sufficient the extortionist has to obtain it in some manner the point i make about it being unclear is again with respect to other cases that didn't seem to require that it would seem to be  else with a very specific factual situation which was the extortion the deprivation in that case the obtaining of a tangible business interest in that case it was the use of force and threats to obtain the victim's ownership interests in two businesses and there was no question there that the defendant had in fact of change that right and in the amended one hour of pain in the court discussed that issue of obtaining at the same time we had prior ninth circuit cases cases like exam act and holker which are cited in our brief which dealt with extortion of intangible rights specifically as defined in those cases the right make business decisions free of threats and fear and coercion now in all of those cases cases like them act and holder and in this case the explosion of obtaining benefit some type of financial benefit in the form of increased  extortion but none of those cases discussed the defendant receiving the right to make business decisions free of threats and fear doesn't alter out the extortion vs the conspiracy  is the government's position that pelecanos was also an extortionist or he was part of somebody else's conspiracy at the time again of the of the war the target offenses set forth in the warrant were title eighteen section three seventy one conspiracy a could it have and which patchouli are much more are quite with this case and that intangible right then and our own was that was a perfectly valid theory it's vetted out through our office it was vetted through the department of justice it was presented to the chief magistrate judge  well the the vetting all the way up was for a number of reasons given the potential impact of the case the potential attorney client privilege issues that might be involved with respect to a search of a private investigator's office there are certain approval requirements that we go through when scheidler to support his position showing how means to receive that property when the property right at issue is as it was an islamic and for her the right to make business decisions without force and coercion the second circuit in the arena addressed what it means to receive that type of intangible right take that right from the l a times by using force and threats of fear to control the l a times its decisions to take control of that intangible right the l a times decisions of what stories to publish is the same that of the explosion that was cases that dealt with deprivation of that intangible right to make decisions free of threats of fear coercion etc that that theory was it was painfully clear it was certainly and i think to  focus on the question that we need to discuss with respect to good faith the question is whether the law was so crystal clear in this circuit that it was objective only on reasonable for the agency in this case to rely on the approval of the radar screen yes your honor but it but but at the same time there are all these other cases that are also on the radar screen other cases from the ninth circuit that certainly appear i believe still appear to be more directly on point because they deal with the precise type of property right that case was his right to make business decisions free from threaten someone come in physical harm its customers somebody else got his customers but they didn't get his right to make business decisions free of threats of physical violence and harm just like in soccer somebody got a benefit by being named the beneficiary of a life insurance policy but they didn't get the proper the right as defined in that case which was the victim's right to make personal and business decisions we express in coercion similarly in this case th was the agent required to disbelieve all those people who had told him there was probable cause and leon makes clear that he's not unless the agent is acting in some grossly negligent or objective leean reasonable manner we don't place those standards on our agents to deterrence rule that has been created by the courts in order to deter misconduct by agents and where that rule would not have any deterrent effect because the agency has not done anything wrong exclusionary rule has no place that's the consisten as every good faith case that's been decided by the circuit and by the supreme court the agents here did nothing wrong they presented their affidavit they got approval they took it to the magistrate they got approval they obtained a search warrant they executed that warrant according to which terms the warrant center are calorie had a whole different set of problems the ones in that case didn't even set forth the categories of items to be seized or even the crimes that were under investigation and that was eight painfully over agent was aware of at the time the court's findings i don't believe go to these subjective awareness of the age and it talks about the presentation to multiple levels of approval that the agent obtained the warrant from the magistrate judge that it was executed and it was winter going to be drawn from the multiple levels of approvals the one that shows rinehart suggested which is it was looked at carefully because everyone was aware that you know this is kind of tough and there's another explanation could be offered as well i'm sure but right now it doesn't appear that there is any issue and i'd like to point out first of all that's as we pointed out in our brief there was no computer seized evidence used against mr qualify in this case the evidence in this case was the grenades the plastic explosives that were found in the same only only sees on the spec to you in a precise contents of computer files if the court were to find out overbroad which we submit it's clearly not it's the standard language that's used in every computer search warrant in this district there would still be nothing to suppress with respect to this case investigation conspiracy and hobbs act it's set up the place to be searched it's now the categories of items to be seized to further sub to find those categories as far as types of items in very closed not and supply and other such items they can seize it if it doesn't they can't but it's no different from going into a warehouse filled with file cabinets stacked floor to ceiling with files they don't have to stop at the file folder label and say well that deals with somebody else it's not responsive they can open th file folder if they pull out a document and see it's a letter they can look at the contents of that letter to see if it contains anything that's responsive to the warrant if it doesn't they put it back they can seize it if it does they can't we're simply dealing with file cabinets that are stored in  digital space here as opposed to in a warehouse but there's no law from the circuit that suggests that the standard is any different and the precise contents again may be viewed under the language of the warrant only for the purpose of determining whether the evidence falls within the scope of the warrant and therefore can be seized this is very different from the tenth circuit case and carry that mr ray referenced in that case was the agent thousand child porn he by his own admission stopped looking for what the warrant authorized him to look for and started looking for child porn and he was therefore conducting a search that was outside the scope of the warrant that's not what happened in this case there's no allegation there's no evidence that the agents conducting that search were looking for anything other than the necessary that some member of the conspiracy receive that right and again whatever that term receive means in that context  at the documents to see if it establishes relationships between several people which has its own problems but the portion of the warrant which the court directed itself to previously said in searching the data the computer personnel may examine all of the data contained in the computer equipment o because as the court recognizes in both of those cases the exploration or extortion erm did in fact receive the property benefit in holger he got the business in the in whatsoever and so that's why they had to dismiss that case the and that's why this case is so unique because of the factual circumstance which the government was investigating they could not possibly under any theory get a piece of property which could be obtained extortion attempt because they wanted to get the property and in fact the hobs that specifically requires not only that the person being extorted is deprived of property but the extortioners or third party interests get that property that was very clear and it happened there have been phenomenal and so that may be one of the things that's one of things i've struggled with this pinero confirm affirms a conviction doesn't reverse frankly that makes it more credible to me for the government to say that it doesn't pop up as a problem because they don't have a rehearsal they don't have something that says you can't do this out it goes in for an hour you've got a conviction for how i have that conviction was affirmed and arguably whatever else the court said about what might happen in a case where the defendants had not and pained the property was irrelevant you know it's and i would certainly hope that we don't that's of the state where the government is free to say well the ninth circuit says this is what the law means but you know because the didn't a firm we're not going to listen to it a lot i don't know that there could have been any english words chosen by the court and put on our own to have made it more clear what they were saying with regard to the elements of the hobs that and what they said own folly some other circuit now maybe back in the justice department they feel free to say forget the ninth circuit but quite honestly judges in the circuit and prosecutors in the circuit are not allowed to do that thank you