he knew the identity of the gang members the drug dealers the suppliers to click leaders he conducted the gang meetings they were signing books of gang members he had restructured the gang and established the gang rules he set up the tax collection procedure for the mexican mafia who control the heroin methamphetamine delivery systems essentially he knew everything he needed for the government's investigation but that the government chose to seek wiretaps rather than and adopted by the district court were in error if you look at all in error maybe you think so but i guess what i'm trying to figure out when i'm looking at this is did this affidavit contain a material fill incomplete statement i think you just eliminated what we're really down to is is the affidavit sufficient for the district court to make the determination that at this point the wiretap was necessary well that's part of it the other part is i think you need to look at the nova review as to whether the denial of the suppression motion was correct and really what it comes down to is looking at the justification that was offered by the government and adopted by the district court to justify the the wiretap in this case and so what i'm really talking about here maybe i'm missing viable option at that point the court reviews the affidavit and tries to determine if the wiretap is necessary at that point it's an abuse of discretion determination i can understand if they missed information but they didn't misinformation they told him directly right there why they weren't using maracas as the viable alternative that if you look at the reasons that were provided as to why they were in use rock ts the reasons just don't carry much weight they should they really in our view really excuses that the government offered to justify getting the wiretap well to be fair i don't have a lot of  in my own view i can by my panel i don't have a lot of respect for the idea that oh they had to think about the availability of the state board tabs or they had to do that i don't think that's in our our jurisprudence at all so that's why i concentrated on did the affidavit say why they weren't going to use broadcasts and wasn't enough that's what i concentrated on now you tell me i'm wrong well i gave you several examples one of the reasons they offer to justify not using bronchus is they referred to this april seventh traffic stop and they said broke is was not willing to cooperate but if in fact that wasn't the wasn't willing to cooperate i didn't see that in either place either it's in it's in our brief no i want to know where they tell the judge that he wasn't willing to cooperate and i think they made the argument in the brief that he was told that he admitted he was the shackle in the gang you identify the two mexican mafia members who he worked for and in fact he arranged for the police to be present during the hand to hand drug delivery that occurred on april  given that he didn't disclose the types of narcotics or the transporters well once again never asked those questions didn't disclose the subsequent in may jail calls from this mexican mafia figure hernandez the next month well at that point that was not in contact with these people and so in retrospect saying that he didn't provide information well he wasn't seems to me that the declaration is are i mean the affidavit is at least not specific about the sense in which she was not for us harming whether he just didn't volunteer it or whether he was asked and didn't answer  final order denying the wiretap motion she basically said that the subsequent fact that they used brackets as the grand jury witness the star witness and trial didn't agent in the affidavit were pretextual or not what was the time lag between the the title three application and the ultimate entry of a cooperation agreement by the last wire target telephone for their fourteen wires the last wire expired on one twenty seven eleven and to answer your question for twenty four twelve was the cooperation agreement with brackets however the so if they waited to sign up brock us as a cooperate or they would never have gotten any of this and well no the problem is that before the last wire expired two weeks before that on january eleventh two thousand and eleven brucie's had a detailed deep reef interview was at his first proper session no the first proper session was an april seventh in the traffic stop you call that a proper session you have the problem give us a cooperation agreement where in the next day he does a controlled money delivery to this guy and then in july eight he has he's asked by the task force about this murder this july third murder of daniel martinez and he gives him information about that so the point is few minutes before midnight on the last wire was about to expire they do broadcast suddenly is rehabilitated and cooperates and becomes the principal witness after that  use i mean how often do you see the apex of the organization and that's what that's what distinguishes this case in my mind from the to cooperate are cases cited by the district court in the in the order inner circle here you know in the canal it's going as case if they had had as a cooperator the head of the organization he says gomes or frankly all it would have been a different result there would have been no necessity then and in the rivera case if you had the rivera brothers they were the hit is the rivera drug trafficking organization if you had the guy at the head cooperating you know if that doesn't defeat necessity i don't know what could i mean this counter surveillance which didn't make zero sense well what what that's related to is whether he is likely to provide misinformation here a lot of the whole story doesn't make a lot of sense he was apparently driving around warily and then he calls up and says i'm going to go find this guy at a certain place and they did but but before that what we have always has to be able to corroborate their cooperators this court has repeatedly admonished the government that cooperators can potentially be untrustworthy and has warned the government that it has to carefully monitor meaning they have to be able to follow him they have to be able to corroborate the this corner and he did and they were there but prior to that time he's driving around with a thousand dollars of the government's money and we don't know where he is let's imagine the cross examination the trial when we can't corroborate where that individual was during the entire time that he had the government's money and if we have a line solely on this individual to make our case and that's that's what the inquiry is what is the problem the trial with the fact that he went where he said he was going to go and they actually physically saw the transaction with the government's money because the affidavit established two problems with with the ability to surveil and this court said in cases such as rivera that when there is counter surveillance that's a reason to believe that necessity is found so what is necessary to corroborate a transaction is being able to continuously surveil it otherwise we don't know what happened during the time that we didn't see that individual we saw in the affidavits there was evidence presented in the affidavits for example that there was a controlled delivery of money by different informant to broadcasts and because there was a very large presence of gang activity they couldn't perform continuous surveillance they could only do sort of drive bys is there any evidence that he they did talk to them he told them what his position was in this context he was obviously putting himself on the line to some degree by doing that he does cooperate to some degree but there is there there is nothing that says they they asked him and he wouldn't do it in terms of a cooperation agreement or anything else well there's also nothing in this court's case law that requires that what this court has said is first of all the mere chainman of some degree of success does not eliminate the need for a wiretap interview practice in minute that he does collect money involved however he was not forthcoming about the amounts of money he collects when he collects it in from whom he collects the money from he never told the interviewing was about the being distributed and he has never contacted them to discuss his jail conversations with so i take this to mean he wasn't forthcoming meaning he didn't volunteer and the government is testing this individual to see is he going to be a reliable cooperate or is he going to provide complete information or is he going to go and alert his coconspirators to what the government is participate in as controlled sale and he provided limited information and so we have to look at the context of what went on in april in april he cooperated in one discrete situation to protect his girlfriend  himself so what did the affidavit lay out about that that contact that he was stopped his girlfriend was arrested with meth on her person and he wanted to take responsibility so that his girlfriend wouldn't go to jail in addition he was in a pickle because the money that was in the car had been seized and that money he was supposed to be delivering to the m a the next day so he provided the minimal level of cooperation necessarily to get out of that pickle he agreed to make a controlled delivery so that the agents could identify the person he was delivering to so there are two things that we've learned from this one is the fact that he cooperated in this discre in no way allows the inference that that limited cooperation shows that he was willing to give up his criminal livelihood and fully cooperate particularly given the known propensity of the mexican mafia as well as the gain to brutally retaliate and refused against cooperators and the second thing we know is that he can't deliver the entire enterprise he didn't know anything about champ he had a moniker and a number he was willing to help the government identify him but he didn't have any information about who was collecting for the mexican mafia all he knew was i'm supposed to meet this person whose first name and last name i don't even know i'm going back to whether this is an individual who can't accomplish all of the goals of the investigation he doesn't have complete information and i would submit that this case is not unique this case is actually very similar to what happened in the case also mexican mafia case where the cooperator was somebody who was very very high up in the organization he had consensually recorded many conversations he had video and audio taped a number of meetings among the top leadership of the mexican mafia and even in that case this court held that there was necessity for a wiretap because neither that individual nor any of the other cooperators knew all of the of the information that related to the entire conspiracy that's exactly the situation that we have here and again although this information hearing on the wiretap showed is that there were not omissions in that regard in other words they had not underestimated his ability to to provide information and again we don't know if it's because he didn't have it or he wasn't willing to give it but in april he didn't provide the information in may after he received jail calls between process and sell hernandez he didn't come and say hey i'm cooperating here's some more information for you and when he was approached in july and this is all before the affidavit to ask about whether he knew anything about the murder of daniel martinez he had no information so again whether it's that there was no information or in a much when he didn't have any solid information about who had killed martin i thought the point he had some surmise he had no saw the information so again whether he's telling the truth or not really doesn't matter he that wiretap is going to give us the opportunity to get whatever information is out there no it's only going to get money from ation he participation or there is relayed to him right which he could also g by giving you if if we had trustworthy information that he was willing to give us and but rather say i mean as for the wire i mean this argument just seems wrong headed because the question is whether they could have gotten the information on the wire caps from him well if he was trustworthy of course they could the problem of course is they would have the wiretaps so prove what he said and at the statute seems to admit of that by saying there has to be necessity and that it's a necessity as it's always better to have the wiretap to jab somebody telling us something who can be cross examined that it's a nonstandard well i don't think it's an either or and i think the standard here is that there were  specific statements in the affidavits as to why this individual could not otherwise have said hey we just said that he wasn't forthcoming about this to nap and then he was right that he was that we don't think that we can but there were facts that supported all of that regarding what happened during the april interview when the information wasn't provided regarding the counter surveillance regarding the circumstances of april second is there any report of a player who  it is a page nine eleven that it says is that he's not willing to testify and i would submit that that's actually the end of the matter because if he's not willing to testify he can't be cooperative and make the whole case but ultimately the question here as judged miss said at the beginning of my opponent's argument is did the issuing judge clearly error or abuse her discretion in concluding that a wiretap was necessary because the goals of the investigation could not be it's just a couple of quick points in response obviously you need more than the naked testimony of brackets at the time of trial to make the case but what could have been done was a penis cooperation and make each one of these wiretapped calls could have been the consensually recorded call they were all in practices phone they were you go through the indictment or they talk about each of these wiretap that's the whole darn case and these calls could  y been made with consensual recordings eliminating the privacy problem that's part of course it isn't your client's privacy problem perny the privacy problem isn't your client's privacy problem in that regard the society's privacy the probably why wiretaps are a disfavored intrusive method of making a criminal case so it's clear that  it could have been done nobody disputes that would have brackets had been brought on board and he was cooperating he could have made all the same calls that are all the calls in the referenced in the indictment could have been consensual recorded call ball with you guys then that's a different bunch of layoffs are typically by wearing a wire and other words they have they have an interest in having actual tape rather than having somebody recite what happened to agree with that in a way th no one else is there before the main point is that from the get go on april seventh rockets was cooperating he played ball to the extent they asked him to play ball he he what do you think the interview words are that he wasn't forthcoming but i mean i'm asking you about the interview there's apparently a full seven interview yes they never asked him the questions point out like i'm asking you what does it show you or i can and you know where that is new