and my first thought was what is the matter you can't see conversations but then i thought well you can see known coyotes walking in and out of headquarters that bright why isn't it important that the government senate couldn't when it could well we would maintain that in fact they couldn't in sense that apparently this was a rough neighborhood in which there was a lot of activity of various kinds of gang activity and people were much more interested in what was it difficult to see him during the day but again the basic point is what are they going to see when we're talking about this kind of movies going in and out except without the evidence was that all took place out of the terminal level there was no indication that even the terminal managers who legitimately might have had business coming to the headquarters often came there well wait a minute if fact well i guess this backs up to another question i had i was trying to figure out what crime the government would be trying to indict these people for and i was thinking if you want a bus company the goes between mexico and the u s or between canada and the u places where you don't need a passport you know for a fact that you must be transporting a certain proportion of illegal aliens trying to sneak in it's got to be the case it's just like if you're alaska airlines flying between mexico exactly well basically that it was intentional smuggling of aliens rights that allow them and then i can see is that what you're looking for that was part of that that there were in fact ongoing relationships with the coyotes the people who are brin across the border that's why i asked that question i was thinking how do you make a crime at it but actually this goes to the whole reason why this wiretap was necessary because we're talking about is on problem with indicated that those kinds of contacts were primarily going on at the terminal level el paso phoenix and so the real issue was a benefit and a lot of the other  why you need a wiretap is that is that personal conversations that people who were cooperating had had with the consolidators did not reveal any criminal activity and i was thinking well  really prove you need a warrant let's see people come around in my chambers from time to time and chat with me sometimes they have lunch with them if they were working undercover for the government they would probably report back conversation with  revealed no criminal activity while added probably because there wasn't any to reveal i don't happen to be smuggling any aliens just now or selling any go or doing any of these things that would be of interest to the government and how do i know also didn't reveal criminal activity in the conversations because he wasn't doing anything the inference the reasonable inference from the rest of the investigation was that when you have  pervasive a degree of activity that it is likely that the people at the top are also involved but that gets back to my first question of course and so actually  i think is a mcguire or may have been one of more recent cases pointed out that one of the important things that a wiretap can do actually is to limit your field by excluding people who appear to be involved but may not be and so it in a sense a protection for the innocent as well as the most effective means of finding probative evidence of guilt this is not like those smuggling operation where you're going to be able to look and see people loading bales of marijuana basically you're talking about the headquarters go from phoenix to boise i don't see why is the bus driver or terminal operator i should even consider myself most likely they're just going to work and agricultural projects in boise and whoever is the of that group is buying them their tickets i had each one b k where around apparently there are only some mexicans from some town in mexico who have the skills to work some expensive sprinkler quitman and idaho and that's what i was thinking of you bring a whole bunch of them up once because these are the only people you trust with your expense a variation of quite well again partly ongoing operation it was clear that many of these people were not being brought across the green card or anything like that but were tracked being brought across by coyotes they were being smuggled they were clearly illegal and this was an ongoing regular basis and that's why it was so important to determine again are these was that in the initial wiretaps to phoenix and tucson there were some conversations with antonio and francisco gonzales which on the face of them seem to indicate that they were in fact aware that they were transporting illegals and who frack conniving to do it and so i think they got be aware i mean if you're if you're transporting people who speak spanish in the southwestern united states you have to think well there are a good chance you're some illegal aliens well there's a difference between being an ordinary common carrier who you know has that happened and someone who's in gauged in the business and that's what the whole point of the market was what evidence was there that they were engaged in the business before  the rest of the drivers and so forth and what they then found was that there was an interchange between the phoenix and tucson terminals and the chief says that's a blank office which indicated awareness of this concern that ins was interfering with their business and actually changing of routes to avoid the i and as i understand what interchange and changing routes conversation would mean interchange i mean talk i'm sorry between the managers at the phoenix i mean the manager to avoid the ins stops which is what some of the conversations reflected what i'd like to suggest though is that really we're getting down a rabbit trail here because all over a multiple errors committed in the way that the district court handle pranks that you look any further but you look behind the affidavit and start getting into issues about what was or wasn't set or not told and what we have here is a case where the district court never made  easily accessible undercover agents could been sent into the black office more than the one time and this is the way he and the court find therefore that the government has not met the burden of proof of necessity for the blake affidavi and therefore it suppressed that is simply a re weighing of the necessity finding it's in no way does that resemble franks he doesn't say anything about the mental state which is critical whether it was intentional or at least reckless owners they had largely the best of them themselves of that right by at least me and so forth but the bottom line is there was no evidence and again no finding by the district court that they had any fourth amendment interest in the conversations we're talking about not conversations to which they themselves were parties or had directed we have no qualms that those are things that have standing to attack but simply wanted to be able to object to every conversation made out of had if i were doing a federal criminal defense a government could track all of my contacts with witnesses they would know when i was getting warm when i was told when i was on a rabbit track and when i was really getting somewhere that i sure would have been interested in it in the conversations that my secretary had saying do you think you might come in and talk to mr kleinfeld or fifty grover there and talk to you because she was making those she was engaging in those conversations of my direction exactly and that's what would give you standing but there was no evidence and again the burden of defendants to prove that they have some interest in this with if they own the business and they lease the property it seems like you could presume that what's being done there on behalf of the business the business conversations that take place from there are at their direction or subject to their direction well it's not my total shareholder or c e o or whatever may have access and control in a broad sense of a particular premises doesn't mean that you actually have a fourth amendment interest for example and sell it was the chris shop of the hospital and the hospital executive hardly ever went there they said there wasn't enough of a direct connection for him to have an expectation of privacy and that same thing here we have a headquarters of twenty five or thirty different people all their different offices and we're talking about their individual conversations presumably not at the specific direction of the losses if they can prove that fine but what people are doing in their own direction again the cases don't indicate that they have that kind of interest because it's the person who's speaking it is their privacy interest which theoretically is being on by the intercept  that's why i pointed to the court to the older king case at the very end i don't see that i mean to go on with the analogy which i think is i can't see any reason it wouldn't be analogous to my secretary involves some privacy critic curity reasons for me well not all the bad guys to know what hotel i'm staying well perhaps if there is evidence of that kind of relationship here then we would not be of jeff to much routine and business with secretary that's that and a lot of what goes on in business is people anticipating what the boss would want if you were paying attention to this particular branch of the business well what's routine may not necessarily be what again it i would suggest not that again without some direct personal interest that the fourth amendment is not involved and for example francisco involved with clear from the record was in now he was often down of terminals and so even though in theory he had a right of control most the time he let me in there and so why should he for example has standing about some conversation with somebody who was doing craft about the conspiracy and were clear from the screen court that brit simply being a member of another conspiracy is still standing why should he have an interest in a conversation with someone else particularly again when no evidence was presented to the district c of that kind of direct involvement or direction or simply the only place we lease it therefore we all have standing about everything that goes on i don't know your time is up i have a different perspective on this too i am in there i think you  believe was going to address the standing issue and so i would like to save that issue court for later in the obviously great interest of the panel i hope that we can some time i see that and i definitely will but the issues that i intend to address today that the charges suppression order itself and contrary to what you've heard today that suppression order was completely justified by the week long evidentiary hearing that was held in this case what we  if the government wanted to investigate general motors and they it out by investigating and trading some automobile dealerships maybe out in arizona spend a couple of years doing that and get wiretaps and then all of them they decide indicate maybe we want to hear something over at the headquarters of general motors in michigan and instead of doing a new investigation at the general motors headquarters in michigan which title three requires instead what they did is just go through and make their affidavit sound like they have done that kind of investigation that's what the a done here that's what kind of three prohibits and that's why so much collins ruling was completely justified in this case now the government's argument can be broken out in three separate parts one is that frank's hearing should not have been held in this case and i don't intend to address that once the court has specific questions on that because i think the record so clearly supports  frank's hearing in this case our pleadings specified exactly what statements we said were misleading they were supported by almost a hundred pages of affidavits transcripts photographs and other document tearing material that more misleading or untrue statements and secondly that even if there was that necessity still was shown in this case and i think turning to the first of those issues the government is correct that the judge's order does not say i find the following the statement however it is clearly implied in that order as you mentioned judge john felt and there are a number of ways that we can see that one is the judge collins found that there was virtually no others the parts that i'm talking about are number one the fact that he made as a factual finding that there had been virtually no investigation done here that cannot be squared with the affidavit you can't have reached that conclusion and still believe what was said in the affidavit that's number one secondly the fact that that he reached the necessity issue at all implies that it was very clearly briefed in this case in writing  you can't rule out possibility that there could be that understanding that it's highly unlikely given the nature and the extent of the briefing in this case given the nature of the and extent of the argument in this case the judge could have possibly missed that as a matter of fact during the argument before the hearing judge collins did make a finding explicitly on the record in request in response to the prosecution's request that at least the initial pleadings had shown that there were intentional misrepresentation there were misrepresentations whether they be intentional or reckless or not and for that i do have a record site and that is the excerpt of record at pages five hundred and seven through five hundred and bottom of five hundred seven zero eight he specifically says yes i make the finding that there were this representation now i don't want to mislead the court that was certainly in regard to the initial shown but my point is that it was very clearly argued to  tenor of the conversation that was held in this case was pretty much going to throw this this agent in front of the train and say that he's a liar and this judge didn't respond to that well he decided not to make you know questions about certain things in the affidavit that had they told the judge those things that it may have had an impact on whether or not the judge granted the wiretap and then he goes on the next day and it's because of made an argument in their brief and it was in their reply brief so i didn't have a chance to respond until just recently but their argument was that rule twelve d requires the judge to make explicit findings of fact and i don't disagree that that is what rule twelve  of this and i know i cited the arizona versus johnson case which you may remember judge nelson i argued last year in this court and in that case the judge had just made a ruling without saying what exactly he relied on not counting us what his legal ruling was in this court went through in that case and looked at what facts were implied in that case and what the judge's legal reasoning must have done must have been enough time on that basis it's it's commonplace it's well understood that this court is going to affirm a correct ruling if it is made for no stated reason and the court will actually have firm a correct ruling even if it's made for a reason that it's wrongly stated on the record the court reaches the right conclusion this court will affirm but i think it's very important for me to say right here that if for any reason this court doesn't believe this record on them supports firming this decision which we believe it that it's but the remedy would not be i respectfully submit what the government requests what the government requests for you to reverse the suppression order that is not the remedy that would follow that fact finding are that finding the remedy the correct remedy would be to simply remain on this case to the trial court for further findings of fact that is what was done in the pre op tovia case with the government side and that was what was done in the cases that i followed but that's it it's not necessary to take the time and the judicial resources that would be required to do that here in this case the record ample it supports this judge's finding of fact he sat through a week long evidentiary hearing he listen to the witnesses he was able to evaluate their demeanor and the conclusion that he came to was fully supported i think the best example of that is the question of whether they could have had a confidential informant talk with the top people in the feeling where he says i didn't see anything say anything about whether the government lied the issue is whether or not they were false or reckless or misleading statements reckless is a different thing than being false and if you think they were reckless not believe from page number here the lawyers are going to show the record better than i did well and i believe from the page numbering that this transcript is from the pretrial arguments are the pre hearing arguments and therefore it's not a post hearing finding argument and i'm not going to stand here and tell you that it says anything different than what it actually says there that this is the total of of what he said here i would point out that the government in this case did not move for any reconsideration the government did not argue under rule twelve would like findings of fact so yes this is what was said but i think that's very clear that the car the the judge would not have reached this point had he not  made a finding that there were false statements or material omissions in these affidavits and he could not have reached this logically because this contradicts what was that in the affidavit so it's very clear from that and i think you know if you look at the example i was i was just talking about the informant who came in and look at all the walk in the hallway talk with mr gonzales who was able to tape him he was able to talk with him about smuggling undocumented immigrants and he did it not once but twice in the same day and age until admitted under cross examination he knew about this he admitted that it was important and he had no way of explaining that and so you can see that not and if i could just summarized i think it's important to to say to this court that judge collins factual finding in this case was that there was virtually no investigation of significance done at the plague avenue would not have issued this wiretap warrant in this case and that's the reason that we ask you to affirm his ruling thank signed the lease behalf of the corporation he is the day to day manager in this little group of offices and everything in terms of business wise is done on behalf of the c f o he was the target of the wire y after the ruling affidavits were submitted without objection by the government in terms of the contents which indicate the information again in a very succinct manner as to what i just told you fifty one it isn't a defendant as far as the implicit findings you know there cannot be implicit frank's findings if you look at the twenty j letter there's not a single franks case in any one of those johnson quoted he was speculating see the problem was that he was talking before him and i'm not sure of that point he really did understand the standard because he constantly talks about concerns or questions raised  that's all that's the they had in the surrounding three or four pages or the total extent of the order and you'll notice that it's even internally inconsistent because previous to that on the previous page he says that the government had done everything that was necessary  had his aborted trip in which he learned absolutely nothing in the blake office building here he can walk up and talk about but couldn't get anything meaningful out of him no the point is not just access to have face time but access to obtain whole issue of well i'm real concern about these illegal aliens be on our buses and you've sent out this memo that we would maybe responsible if we don't search the bus which was in fact diligence by the ins and seizing on this opportunity to at least try and get him in there and basically if you read the transcripts which are included i can't give it a citation but the transcript is you couldn't there and basically saying well don't you worry about it use the driver had nothing to say about it  nothing at all that goes to his degree of knowledge that this is illegal or anything else what it shows really is that that kind of encounter is not going to get them anywhere there are other situations and i cited a couple places in the region where there are other people who have attempted to approach him at the terminals when he was out there and have conversations no no he kind of brushes him off so the only way you're going to get an insight into what is really going on with all these people are really conspiring is to hear what they are saying to one