morning may please the court my name is vanessa maloney and i am here on behalf of the appellant b elease miller and i'd like to reserve four minutes for rebuttal and this morning i'd like to focus our discussion on a couple of areas which were not addressed as fully as i would have liked in the in the briefing and that is ruth regard to the district court failure in this case to make any ruling as as it relates to the agency argument that developed during the suppression hearing in november of two thousand and twelve but order court what sort of  court not discuss the district court provided its ruling and it discussed the suppression issue as it related to the search of ms miller's business which is three rivers which was three rivers infusion firms and miller pharmacy and it also discussed part of the suppression motion as it related to the search of her private residence hundred ten at with terrorists also and because shocked and but as the testimony developed at the suppression hearing however the argument about agency and whether or not ms miller's made mary richards was acting as an agent for the government when she discovered and she reviewed files that were found in an attic other than the testimony which from which such an argument could have been developed other than the testimony where did you actually present that argument to the district court because it's not in your motion nischelle motion was filed the nischelle suppression motion was filed in two thousand and ten in this case which was long before ms miller was even indicted on the actual health care fraud case that was the underlying offense for the obstruction and concealment of records cases under case number thirty three three hundred thirty one and forty six and two thousand and ten however as the testimony developed a supplemental motion was filed by counsel for dana campbell dana campbell is ms miller's husband and his attorney filed a supplemental motion on december fifth of two thousand and twelve that supplemented the arguments that had developed at the hearing regarding the agency argument and that filing was made five days prior to judge wells ruling on the order but i believe ordinarily  that's underlying issue that's correct your honor but the affidavit submitted in this case for the search warrant for the residence included three statements and these women testified at the suppression hearing and they they averred at the suppression hearing that the statements that were attributed to them in the search warrant were not so i don't want to say that's exactly right and ms richards also testif because if you look at that if you look at the affidavit for the search warrant for the atwood terrace residence there is nothing connecting any of the information in that particular affidavit to the actual personal residence of miss miller except for paragraph twenty eight and that paragraph was from ms richards and miss richards indicated the paragraph indicated that miss research inadvertently found a box in an attic washee was searching for christmas decorations that included files that were the subject of an administrative subpoena that had been previously issued to ms miller as owner three rivers infusion pharmacy and so these women testified at the hearing and through that hearing it was determined that miss richards when she found the box she had no idea what the box of files entailed but she had been used as a source by the agents throughout this entire what ended up being a year long investigation well into the alleged health care fraud of ms miller at three rivers part of that did she say she did well the part that she said that she did not discuss with the agent was related to the information that she doing that was gleaned from the other witness specifically kay wisenberg who that whose the statement in the affidavit says that richards told her hearsay information that there was a tote in a garage at some point in two thousand and eight  that what that health center just files miss richards denied that she deny that she told her that they were synergise files she said they were medical mutual files because that's what was on the outside of the b when the inquiry with mr richards continued concerning whether or not just to how the discovery of the box in the attic which occurred at least a year after the garage box incident miss richards indicated that she had been looking for christmas ornaments or decorations saw an unfamiliar packing box with inside of a garbage bag and she looked in the bag and she saw the files and she says and this is how she testified she said i guess this is what they were looking for and so she made the phone call to agent holmes and a couple  days later agent holmes calls her back and say can you go to that box read some names off the files give me the names and then and give me the names and so miss richards who had no reason to go back to the box again no reason to read names off of these patient files she followed your instructions and gave them the names and those that have she was on the premises right yes she was misess miller and mr campbell did not permit her to go into she wasn't permitted to go into the people to go back to this point about miss miller being an agent of law enforcement and the two  with respect to her functioning as an agent of law enforcement in this particular ordeal the you argued that she was functioning as an agent of law enforcement when i am arguing that it's the second scenario ok she ok inadvertently found the files and that's fine so if she if she was not acting as an age of law enforcement on the initial she called and said is the what if the the prejudice of the harm then of her simply going back to a bag she's already discovered and reading information and writing it down because that's what she did she looked at  folders and so that's rigor to her memory because she had been repeatedly reminded by the agents to keep out keep look out make sure there's nothing look and see whether or not some there was the argument there was no argument after testimony i believe that the time had gone relatively longer than any of the parties and the government can speak to the time to get a different way  would the court deciding your suppression motion have known or had any reason to think that you were characterizing ms richards as an agent of the government when she made this discovery at the time of the hearing because this developed during the hearing i don't believe that there was the opportunity for her to make that determination of in the fact that the questioning of mr richards lends itself to the argument that was later presented and so th have constructed that argument such a position i'm sorry so the court should have constructed that argument no it not the court should have constructed the argument but when the the follow up motion to the hearing was made it that structured the argument with respect to the agency which made it league was not raised prior to that hearing and sort of genetically developed during her testimony i don't believe that even the defense was aware of the sequence of events that happened at the time of the discovery of the files and in the second part of the question was that how is reading names anymore miss richards had no idea what those files were she had she had no experience and miss miller had been a pharmacist for many years and she had many other files other than synergise files and there was no way for the government to know whether or not those files were responsive to  the ministry of subpoena without having the names so miss richard didn't write the names down at the time she discovered that she was told to go back to the box and do that and that's her argument and we believe that because there was no factual findings based upon the later filed motion that that remained is in order and i think thank you counsel thank you believe are unclear from the presentation already set forth in my brief the issue with respect to the search the search of the residence in the finding of these files is supported by the record for three reason for three independent reasons first of all as you know that the standard here is whether there was clear error in any of factual findings made by the district court and whether there was a legal issue to the to that extent the issue is do no the district court did address it not in any great detail the finding of these files by the housekeeper ms richards and the agency argument not in any great detail as your court has hit on the head it was not raised until after the hearing and when it was raised after the hearing as judge donald pointed out there are there are two questions whether it's initially an agency argument or whether it's only after she speaks to age especially to homes and then goes back to get the names now on the first one i believe the defense has conceded that there is no government agency argument with respect  i believe that is fully supported by the facts the housekeeper was looking for a christmas tree opened a bag and saw counsel did say albeit that the end that ms richards had been advised a number of times by the agents to keep your eyes open be looking for stuff why is that not sufficient to make her an agent for two reasons first of all i will note that when this was raised in the supplemental motion i don't believe that that issue was raised it was the only issue that was raised was whether her going back to the files and getting the name somehow create an agency but second your honor merely asking a person to keep their eyes open or to ask a person to be cooperative with the government isn't in itself sufficient to create that government agency the test is a significantly higher test the government needs to know that he search is going on and has to somehow have in instigated it and the private person who's conducting that search must be intending to do so on behalf of the government and neither of those problems are met in this case wasn't and that and actually that is the single most important reason why that warrant is valid in this case as i mentioned at the beginning there are three reasons why this whole agency reasoned argument doesn't matter but the first and foremost of which is that the warrant itself doesn't rely on any of those names it simply relies on the the information that miss richards initially found and reported to the age i'm sorry yes miss richards initially found and reported to the agent simply that she opened a garbage bag she saw what she recognized as patient files and therefore reported that to special agent holmes that's what he put in his warrant so the whole thing about her going back and looking at names none of that is in the warrant none of that was part of what the magistrate judge considered and therefore because it's not within the four corners of the warrant it's completely immaterial so much of what i argue in my brief is really more academic than anything else because even if you were then to somehow view what is written in that affidavit as relying on the second search which i i don't think is factually supported  e richards did not exceed the scope of her initial search there is no testimony that she rifled through the box to get those names in fact i believe what she testifies is that she looked at the first couple of files told special agent holmes what it was and left it at that she didn't go search any other areas that she didn't do anything that in any way materially was beyond her at the scope of her initial private search through who did the affidavit did you say the thing about this richards identified specific names he did not what he said was that she found a bag of a garbage bag with a tote of patient files in it up in the attic and that there also says that there were sinner just related files so the closest he comes to any specificity is specifying the type of drug that's involved in this case there was also testimony at the hearing regarding earlier statements that mary richard made to special agent how regarding the fact that she understood they were looking just files and that she had previously seen synergise files in the home back in december of two thousand and eight but that those files had disappeared and as far as the district court's findings your honor i would note that the  poor phrasing relating to the number of files provided sufficient evidence to give the magistrate judge a basis to find how the health care evidence of health care fraud violation at the residence the district court further found that and further your honor even if you were to remove the language about the senate just files which i don't think is warranted here but even if you were to remove the senate just part of that and simply rely on the fact of the patient files that is the salient point here that is to provide probable cause as your honour's are well aware that affidavit lays out a series of events where the employees say that we saw synergise related files at the time of the search the agents missed it i'm sorry the search of the business that the agents either missed him or for whatever reason they weren't taken that a subpoena was issued and then those files disappeared testimony was further provided at the hearing through the special agent flew hart who deny that in the court made a credibility determination that her testimony was not credible in this regard and that as special agent flew hearts was ok i would move then very quickly to the other issue that is presented for your review which is the search of the business and whether it exceeded the scope the and more particularly whether the search warrant the particulary caught requirement of a search warrant was met as your honour's are aware there are a three contiguous buildings that are at issue in this case two thirty four is the business address miller pharmacy two thirty eight main street is the business address of three rivers pharmacy and then there is a building that's these are all adjacent to one another attached and that is two forty and two forty and a half that testimony at the hearing was that the agents  went into two thirty four and two thirty eight they searched those premises to include these up stairs portion and that the up stairs portion that the second floor that they searched everything was contiguous they are were no  of the second building the what whether the second floor there's no evidence that the second floor of that building that's above the two forty address if the agency even went in there and i want to have three floors to correct it did that was the third building and the one that was two forty was the address but as you go up the stairs the testimony was that the agents were only in everything that was continuous and open and i believe the law i in particular the case which i cited and also nichols that you can search you know the area but it could particularly described in the search warrant and areas not noticeably separate from the described structure in th it's almost virtually identical to this case there the business address there were two business addresses for one business and the defendant there had argue that because that import the second address in the warrant wandering into any part of that that was the anything to the contrary they did not so the idea that they might have been in an area not specifically named in the warrant came up at what point also came up at the hearing that was never raised in any pretrial brief it was addressed in the supplemental motion if there are no further questions from the cart i will sit down thank you i think there are not hun thank you just briefly and i'll touch on the last part first regarding the regarding the search of two forty main street which was clearly different building the argument was not raised in the first suppression motion in light of the fact that the argument developed based upon the sketches presented by agent how was the sketches were presented by the defense at exhibit j at the suppression hearing and that exhibit indicated that agent how i had made sketches of the search as was testif to by agent unca for when you say that there was a clearly different building if that statement based on the view of the exterior sketches of the building or is it what's that statement that they were clearly separate based on well the buildings were separate and if you would have the opportunity to look at exhibit j you will see that the sketch indicates that there is a wall at the end at the on the east side of the building to thirty eight main and that wall separates two thirty eight from two forty there is also in one and then i believe the last page of the sketch is that the floor that they're on at that point and it doesn't really indicate the floor it just says the east side of two thirty eight main well two thirty eight main if if i don't know if anybody is familiar with downtown shocked and it's an old these are older buildings and they're there to their narrow long buildings and the pharmacy is here the infusion pharmacy was right next door but those even those buildings that were clearly connected were not physically connected as you go to the pharmacy there is no there is no common area open up to the to the infusion pharmacy those two buildings were completely separate justice the two thirty eight was completely separate from two forty there were doorways that could that you could trip across because ms miller did at one point on all of those buildings but there was specific doorways that they went through and on the sketch you can see that there is a stairway leading up to the third floor and interestingly enough the only sketch that agent how indicate it was the east side of two thirty eight was the sketch that included the stairs to the third floor won't  other building and that in about every test of out of there or there was there was not testimony because again this developed at the hearing but afterwards the legend that was testified to at the hearing indicated that each room that they had gone into there was a ledge and there was a number letter legend as to where what documents were found where there were several documents and several files from one of the officers of three rivers that was in this section so it's not exactly clear as to each document what was in that in that part of the building the district court as i remember the order on suppression district court found that the evidence didn't support a finding that the officers had gone up into the third floor for example that they had searched beyond the actual buildings that were to specifically described in the want what would we look to to find that that was a clearly erroneous finding was that the only thing that we have your honor is the fact that our client knows that certain offices were in the two forty building and the fact that there are on the on the agent's sketch there are stairs that were united in or off lore how would how would we reverse what the district court did as being clearly erroneous on that basis well granted that was not as developed as it could have been based upon the based upon the testimony that was presented it would be difficult to reverse that thank you the case will be submitted clerk recall the next case