yes good morning your honors tom goldstein for the appellants if i could reserve one minute for about oh and just to start with the why we care question this is a mr meaner plea but it's had enormous collateral consequences for the  addition we have a finding by the district court that there was probable cause that the son committed a federal felony which is deeply troubling i'd like to see i have no consequence to this and that's why they're caught the judicially recognizable consequences for the  the state of the record on that question at the time of the plea it's a critical point this is to our second argument about whether he was he should have just rolled the dice what happened was the plea was entered immediately before the evidentiary hearing on both the franks and the fourth amendment arguments after the plea agreement the government for the first time released evidence that was documents acknowledging what it had done so as to the fourth amendment claim they had created a false evidence cherry record indicating that they had come into the suites at caesar's completely you know without creating this white house or the defendants already figured out that was false because there were already these motions that were briefed i mean maybe the documents hadn't been released but they knew already well it's a to say they knew as of is a strong statement your honor there was one tape in which they inadvertently mentioned and so we believe to be tried litigated this case in the district wh thought that it was true all of the evidence that the government turned over except for this one tape pointed in the opposite direction so what happened was we in this is in the record we gave them a draft of the motion to suppress this is not franks which is also going to be very important we get in the draft of the motion to suppress after we give him a draft of the motion to suppress the government concedes in its brief year pages thirteen to fifteen it for the first time created two documents partially acknowledging the ruse it had created a your honor so here are some examples mike would of went into the suite and create a false audio recording there were memoranda was it like a false recording or it was the pretext for why he was there with his false he create he has a fake conversation if you the tape that they turned over to us he is talking to someone sensibly on the tape but isn't actually talking to anyone he is he there's nobody in the band is that the stuff about like i'm here to repair the cable or whatever but he's talking only to the recording that gets turned over to us and discovery there's no other person there and then they create other documents the government has conceded this created other documents that make it look like they were genuinely going to be there just in case there was a technical problem that sort of thing the government after with the give them a draft of the motion to suppress creates two documents conceding and acknowledging this ruse but withhold them from us ok they do not turn those over until the day before the evidence you're hearing which is after almost everybody in the case pleads they do not turn over any document acknowledging this in the evidence cherry record until afterwards but even beyond that we have the franks argument the government as to our second theory we think they work in combination are second argument about why this is involuntary they have this role of the dice argument that is about the search and seizure question it is not about the franks question which was incredibly important and that is the l to the magistrate judge which were an independent basis for suppressing the evidence in the case that all comes out in terms of whether they intentionally misled the court in the evidentiary hearing we have the extraordinary finding by a federal m franks which really turns on their bad faith remember of course if there are innocent explanations for why this evidence is withheld from the original more an application we're going to lose franks so we can't just figure that out by having caught them red handed because they happen to mention it on a videotape we have to get them on the stand and prove that they acted in bad faith and there is no evidence about that until after the guilty plea so it is i am not understanding yes are you now at the yank was what we used to hearing what you had the evidence what you didn't have was the magistrate judge's ruling that the evidence said what's the evidence said that is not correct and the reason i apologize for the confusion what happens is the government maintains in its response to the franks motion that this was all entirely in good faith and the f b i agent affirmatively testifies at the evidence cherry hearing that no no no no no it's not that we were hiding this from the warrant application we thought everyone would understand that this ruse was on purpose the all of the testimony by the government at the franks hearing is the opposite of what the government acknowledges now which is that they did it on purpose up to and including the evidentiary hearing on frankly because they wrote the warrant the way they did on purpose yes but they were not just on purpose obviously they wrote it on purpose but with the intent to mislead that's if i guess i'm still a little confused so so you knew that they had fake to the whole thing about the broken internet you knew it was fake but you didn't know it was intentionally chuck is that in there no no we have to say fake as to who it was fake as to the defendants obviously ok we had figured that out then under franks the question is when they've been submitted the warrant application where they intentionally or recklessly misleading the magistrate judge about what had happened we did not have evidence about that that we had t what you don't know your honor all i can tell you is that they put on sworn witness after sworn witness saying oh no we thought you would figure it out from the warren application we weren't trying to hide anything what you think is absurd franks are human is more as i understand it they integrity of the course kind of argument we do believe that the government's obligation to act in good faith is an overlay to the case but doc trying only in terms of why the is invalid is that we were misled the government can see that if then we have a case about this that if we are affirmatively misled by the government into understanding the strength of our case for example with fake evidence and by with false testimony then we are not expected to simply take the risk we are there are things the defendants have to do they have to weigh the strength and weakness of their case you have a case though where the misleading this is a about it so this is about how they got the evidence it's not like the evidence of the gambling was false it's like the way they got it was false so do you have a case that says because you're going to plead he pled guilty and said yeah i did this so don't we need something that goes to the evidence rather than the search or the that are discussed in the brief do not there is not an exception to this doctrine that says well if you are inevitably guilty the cases that we have cited do go to the point that if all of the evidence in the case would have been suppressed that still makes this purpose what what the charge against the son was in other words it seemed to me the probable cause as to whether he was you know i fax sports  absolutely correct i mean we are talking whisker thin here they have this kid sitting in front of a computer ok it's not that there's there's a user log in that is never attributed to him we will except for purposes of argument that at the time of the grand jury proceeding there was probable cause the question is at the time of the plea everybody agrees that everybody agrees that if there wasn't probable cause this plea is involuntary they would not let the sun go these charges are for more than five years it's a federal felony unless my client pleaded guilty ok i don't want to see everybody agree i think the government agreed that there was no probable cause at the time in play the government does not agree that there is no i'm sorry that's always the everybody i'm sorry that the government we agree on the legal rules my only point and the legal error in this case if i could just put my finger on it is the district court's misunderstanding about what exculpatory evidence is because everybody would it create that the evidence that the government have to understand how probable cause goes away i mean in other words absolutely your honor we are not saying that they had to build a more my point is affirmatively they found out a ton of things that negated their only theory of the case if i could just put it in terms for just just explain how this would work they have the kids sitting in front of the computer there's there's a perfectly legal explanation that's a totally legal thing to do conceivably it had something to do with the gambling operation so what do they do they get the computer itself they find no evidence suggesting that there was any illegal gambling they get his phone there are no communications about it they get all the records of the gambling operation there are no communications with him they get the list of everybody who's involved in the got with a gambling operation he is not on it they get the list of all the customers he is not on it so if arrested that it is probable cause at the time of the plea to believe that he is guilty and when you have all of this evidence that we know everything about the gambling operation and are you changing the standard that it's not like something like what you would have to be privy to trial i mean what's the difference between isn't the question whether there is still probable cause to arrest him really isn't that only one in a new novel because they're prosecuting him the legal rule is is there probable cause to prosecute he then is it what's the difference between that standard and probable because there are different points in time if you cannot you can i add is it not that additional information has been obtained to exculpate him and other words whether you had probable cause at the time that th is was presented to the grand jury is different than as you've been investigated think what you're saying is that as it's been investigated there is then information to exculpate him because you can find nothing well it's it is not just that you can't find anything so it is that they affirmatively found out everything about ok and signed i mean so i mean i understand your point that because there wasn't more evidence that maybe undermines the original evidence but i'm confused about your point about what probable cause means there are two points and as a legal matter is there a different says ok you have all the records of the gambling operation yes your honor is you mention anywhere in the middle no you have all of the communications from that very computer yes is there any indication that there was any sports betting on it no do you have all the lists of the people working with the gambling i mentioned seems to me what you're conceivable that this is a problem although i would go back to your first question about the actual charge defense here i do not understand i mean this is got to be the barest probable probable cause that he was involved in running a gambling o in this context although we think it's actually a matic because the government concedes in this context they have to prove it at the time of the pl good morning mit please the court morning counsel elizabeth white for the united states i think that this question of what what is probable cause i mean how does it change over time i mean i think that that is that that is really critical what the supreme court has said is that an indictment by a grand jury is is conclusive evidence of probable cause or it's close up as to whether the defendant him or herself yes but is it conclusive in this context well i think the question what would it be i mean when the question i mean the problem in any of course in the context which is usually used it's basically a way going to the government is entitled to prosecute the son fully or to offer leniency for him in exchange for his father's place so we so we have a grand jury indictment that concluded cases like joe and knuckles and right where the government is threatening to prosecute someone if you don't plead guilty i will you know we will charge your father we will charge your brother right the case is the government here wasn't threatening to prosecute why can we we're prosecuting why can't right i mean he was a defendant the son was a defendant in this case he had been indicted the pretrial motions were continuing so this is much more along the lines of the cases like where the government was prosecuting someone and offered leniency to that person in exchange for someone else's plea and why doesn't that case law hold that in order to prosecute you happed it only if the government has probable cause to prosecute that third party then yes and this is what i would say to that that at the time of the indictment that the that the supreme court just said in two thousand and fourteen right that the grand jury indictment is conclusive as to probable cause  there was what they just report found there was significant evidence that there was illegal sports betting thing going on and at the time the search warrant was executed canon two of the other defendants were sitting monitoring with this we said illegal the court said illegal gambling website with messages you know with a message box monitoring the games and monitoring the betting he had one point six million dollars in that in the account now the oh you actually unlike you actually have evidence or had evidence that he was monitoring something is that what you're saying he was he was sitting he was sitting in front of a computer that had that was that had betting odds going on with a message box open monitoring the games and monitoring the odds and you had evidence of that that you get a indicating that he's not all that is the evidence that was presented to the grand jury i mean when th search warrant was executed that's what we found now the concession that i made at the concession i guess for the sake of argument this this idea of whether probable cause has to be determined at the time of the plea versus at the time of the indictment  what i acknowledged is that if the government in its subsequent investigation had discovered evidence that negated the evidence that was presented to the grand jury for example what if we find out two weeks later yeah no that wasn't why canned that was his brother or something like that something that negates the evidence that we presented to the grand jury then we would have i believe an ethical obligation you know just because we had this this grand jury indictment which is conclusive as to probable cause if we just covered i'm sorry i mean we seem to have different versions of what in fact was found why can't it had where we were told i thought maybe i misunderstood it that after they looked at the computer his his computer had been logged into the betting site and  thing about the one point six million dollar account balance wasn't his account or something like that no he didn't i believe that that's i don't believe that that's correct there were there it was i think the defense's argument is that as we continued this investigation we continued to find additional evidence with respect to the other co defendants no i interested him to say that they will get this clarified again but that they investigated him and found that there was no and that his computer wasn't implicated and he was in a blockade and someone i don't have the details straight my understanding is that his computer i mean they saw what they saw when they executed the warrant now it may i think your opponent said that it was not an illegal site where he was but you're saying it was an illegal site well whether the spoke but web site is an illegal gambling site or not an illegal gambling site was is an issue that was the finding that the court made and that was our position but regardless i mean there were a dozen that matter i mean if he has a one point six million dollars legal gambling then that's not much probable cause but it's one point six million dollars in illegal gambling that's different right but what there is is there is significant evidence that that an illegal sports book is being operated out of this villa and caesar's and the defendant is there participating now in this and this is makes a really good point right if you went to if you went to trial on this yeah he'd probably be entitled to a mere presence instruction ok and so and that but that is the thing we have an indictment we can either prosecute him or or offer leniency to him and exchange for his father's please can i go back to this negating issue so you try to acknowledge that it could you could negate the original probable cause so if you find out it's his twin brother who's identical you exact he's off right so i think  arguing that that's sort of the same thing you had here that you had the customer list the records and he's not on it and so that necessarily negates what was your do you have a response and i think that that's just i just simply disagree with that i mean i think we had what we had we still have what we had so i mean what is the scenario by which his activity is still illegal if it's not in the other records is there it was like a different site or i mean what's the explanation maybe for example and i and we we not we didn't test this trial so i don't know but just sort of off the top of my head maybe maybe he was just helping out his dad that one day you know maybe his maybe his or his all thing in his dad's account is that you know that our yeah maybe his involvement in this was you know i've got to leave today take a look at this see if anything happens if anything happens be ready and nothing happened i mean you know maybe his role was very small but it was you know but we had we had enough to get the indictment none of none of the information that we had when we got the indictment went away although we didn't discover additional kulpa torrie evidence against him i think this idea about what is  there's two things i mean yes the fact you know the they can make an argument i mean if this had gone to trial they would have made the argument that that he's not on any of these lists he's not on any of these accounts you know his he clearly was just merely present right i mean those are all exculpatory information but they're not facts that exculpate i mean that negate what was presented to the grand jury and ok so  so let me read this to you in order for you to condition a plea agreement on leniency for the third party it's only permissible if the government has probable cause to prosecute the third party is it your position that prosecute means indict or does it mean at the time the you're going to trial or taking a plea that you have that prop still have enough to go forward because what i hear you saying is all well we indict him and that's all we needed because we had probable cause at that time but would you have had probable cause at the time of the plea and isn't that what it's saying i i actually think that that grand jury's determination pollard you know once we have once we have the grand jury indictment we're intitled to prosecute the defendant but this is what i said before but it seems to me that probable cause at the outset depends on the fact that you that there were permissible inference from what you saw at the beginning yes and inference including for example he's sitting there looking at a sports betting site with a bunch of people who are  we believe are running a sports betting operation so as a pretty good in there's an inference that he's involved but then you find out he's not involved and that he's not there  a lot of other people have tracks as to being involved he has not yes so the question is whether at that point what was a permissible inference becomes a non printable inference i would say that that what that could mean is that the extent of his involvement in this operation was very limited but you had no direct evidence of involvement you had some evidence from which you might be able to infer involvement but then when you looked at the board's discreet evidence which would have demonstrated the involvement it wasn't there and that's why and that's why i say you know if we had gone forward he'd be entitled to america president's instruction i might not have gotten the conviction of the other questions yet have large and searched question yes and just just one point that i want to make before i move on in all of these cases in lemmer e and harmon versus mon and pollard you know they they all stand for the proposition that this coercive you know that you can that the government can't coerce someone into threatening prosecution where they don't have probable cause and in all three of those cases they said but that doesn't exist here because we have because the government has already indicted the third party and when the government you know that mrs harman had already was already under indictment which is proof of probable cause there is not a single case the new rule that the defense is proposing here i'm trying to i'm trying to envision the consequences of it right like in every plea hearing where there's going to be some sort of benefit to a third party in terms of lenience do we have to have a mini trial before we accept the plea to make sure that the government would have been able to prosecute the person would have been able to convict the person i mean this is this this is not an uncommon thing to have these group plea agreement or have they saw supporting this to stage for sure i do not know a single case where the government and has indicted someone has offered to reduce or dismiss charges and there's been a question of oh well we have to see whether they had probable cause at the time of that there's simply is not a case and i think that  government agents disconnected the internet would went into the villa presenting himself as the technician would made it is the very early misleading cell phone video inside the villa and conducted a fake conversation on the recording so that anyone who later watched the tape would think the intrusion was legitimate in our response to the as the court noted in the government's response to the motion to suppress we conceded the bruce i think that that there's that there were clear errors in the investigation of this case there were errors in the clear errors in the affidavit in support of a search warrant i would just really encourage the court to read the court's the magistrate judge's orders look at the on recommendation with respect to the motions to suppress those are for zero six and four zero seven and the district court judge's order granting the motion to suppress fo seventy four because i think that although there were there were serious errors here there's a they weren't they weren't as  as outrageous as they were made to made to seem they were they were errors and what i mean i think one of the thing this idea about the ruse ok so so yes we just the agents just connected the d s l and went in  and and motion to suppress talked about this being the greatest threat and democracy you know government agents bob law and the magistrate judge agreed with us that this was not unconstitutional i mean this is you know we said there's there's a couple of lines of cases about how how law enforcement can get into people's homes and there's this side which is very clear in this side which is very clear and now we have this new situation we think it's closer to this side than this side the magistrate judge agreed with us the district didn't and we respect that we did not appeal this decision i mean this was a this was kind of a new unchartered investigative tool which will not be used again and that's probably fine you know but but this was and you know not to tell the magistrate about that when we got the search warrant and then our objections we said well wait a second if the magistrate isn't think it matter if this isn't unconstitutional then how can it be a material this ruse is not unconstitutional you know judge cope is the one who was presented with the with the search warrant affidavit and she should have you know as a matter of first impression she should have been given this information the f b i agents testified about a couple of reasons that they that they withheld that information and you know there was there were a couple of they said it was about protecting the contractor and they said it was about protecting sort of methods of investigation  granted and and all of that i mean the the majority of that information maybe not some of the details maybe not some of the documents which hadn't been turned over until before the evidentiary hearing but but the meat of the issue right i mean this was this had been fully briefed this was a few days a week before the suppression hearing these six defendants agreed to take this deal to a misdemeanor wouldn't be able to be a prosecutor and i think i think that's one of the you know the defendants make choices like we were on the eve of this suppression hearing with this fully fully brief suppression motion and several of these defendants decided to take a misdemeanor plea rather then rather than go forward right now the fact that one of them did go forward to initially and then and then actually took a misdemeanor plea  after the report recommendation came out i believe but the fact that one of them went forward and was successful and the case against him was dismissed you know now if all of the ones who decided not to go forward and take the misdemeanor deal they get the benefit of that then i think going forward you'll see in every single conspiracy case one guy agreeing to go forward the rest of them taking the sweet deal that they can get and trying to trying to back out of that afterwards  efficiently go through a very specific set of issues and get you some information that you need the case that i promised to identify for you is the fisher case it's discussed in the briefs that's where there was a fourth amendment violation that was a result of misleading the court and  where you had an existing prosecution that's a slightly different issue i just want to segregate them out the government takes the position that hey if we're already prosecuting someone katie bar the door we don't it doesn't matter there's no argument that we can have undue influence all of the courts have that you have to have good faith as rick with respect to a group plea whether you're threatening to challenge indict someone new or prosecuting somebody who is already being prosecuted that obviously has to be the case you can't use the threat you know  putting his son in jail for five years when you have no probable cause against him yes the district court was quite clear that the rationale of all of these cases the government conceded this point below is the weird thing the government affirmatively conceded that it had to have time of the plea agreement they couldn't go forward if then there was a negation of the precise evidence that was put in front of the grand jury this makes no sense to me whatsoever their position in front of you today is astonishing and alarming with all due respect that is they can affirmatively know that the person is innocent but so long as the basis for a finding of innocence doesn't negate the precise evidence that was put in front of the grand jury then it's fine that can not be the law you can't possibly right now opinion saying that the government has taken the position in front of you today that it is not a question of whether they could prosecute at that time it is only a question of whether there's been a negation of the evidence that was this i think she was saying maybe i thought the then fine then that's fine now the third point that are you making about why marcellus go ahead oh i'm sorry the page thirteen list the actual evidence that they had which was that he was simply sitting in front of a computer you asked well i don't quite understand what it is that they found out so in objective terms this is what happened he was sitting in front of his own computer he was sitting in front of a computer they believed was his but he presented evidence that it wasn't actually his computer he was sitting in front of a computer it has this website it is perfectly lawful everyone agrees to look at this website ok it is an overseas license what betting site it has sports betting odds there's a perfectly legal explanation for it that's why the government concedes it could have been either way what did they find afterwards they searched the computer forensically they searched all of his communications forensically they get all of the evidence from the bending operation the government in terms has conceded in front of you that evidence is exculpatory that is the opposite just to be clear that's what they said and clooney ok well it's just your here is the actual fact it is not contested we say it in our brief there is a computer screen open it has an account that begins h k and it has a series of numbers after it there is one point six million dollars in the account they then have every opportunity there is no evidence whatsoever that his account they go through all the records on the computer they go all through all the records of i can remember something about a lodge in name that was like his name essentially ok this is what's confusing ok there is a sentence in the district's opinion that is mistaken and the government does not defend it the only way i will just read you and i am not extent trying to take up my time and this is what i'm not i'm not trying to steal time i'm just trying to answer directly the question at the bottom of page thirteen of the government's brief is their representation of what they have and it is accurate that one sentence agents executing the villa eight to warrant found by kit and why i can watching a soccer game all sitting in front of laptops with a website displaying the live betting odds for the game and instant messaging windows what you are referring to your honor and i'll just i know exactly what's happening the district court says that there is a log and why i can that is the log in for the computer site the logon for the betting site is h k and a number they then go through all the records of the computer all the records of the betting operation and there is no link whatsoever between that h k whatever and why can we turned over to them evidence that the reason that this computer said was why i can is he physically purchased it for his father there is zero point zero zero evidence on day one or the day the police that that sports betting account belong to i can none