eight and the two supervised release issues the first one being whether there was a rule thirty two violation or improper imposition of the domestic violence treatment condition and the fourth one being the one that i omitted to remember  which is the reporting requirement upon re entry and i want to start with you before before before you get into your argument at some point in your argument when you get to that fourth item please address circulated and there's been no ruling yet so to the extent that this court could still change its mind on rodriguez i you know we're preserving that issue thank your honor so that's why i wanted to start with the issue has already ruled on that rather dispositively but i do want to discuss this question of the difference between a functional equivalent border search or an extended border search and the important consequences that being whether the government was if we get to that issue if i'm successful on the other issues i do think that would require a rematch and to the district court there are several reasons one is judgment you know advise the parties at the beginning that she thought the case was not going to be resolved and consent she observed i think correctly that the language on the fed ex way bill that was discussed in detail in the sultan case and the language on the u p s wage bill that was it is true in our case were distinct and she thought it would be resolved on that issue and so there really is the government really frankly didn't have an opportunity to meet its burden to prove consent which is a factual question under the totality of the circumstances under  presented here there's even even in the trial testimony even if we were going to go to the trial testimony the manager of the u p s store patel didn't really testify as to anything in terms of you know whether he was notified did he know what do we do about it in contract law in california and i can see a plus three of the issues that would appropriately be litigated if that question were going to be decided but i do think that the questions currently before the court where the government did submit evidence that my position is was insufficient is this question about the spatial and temporal proximity to the actual departure the supreme court we have the made a case where the supreme court held that twenty miles away a roving patrol that was basically neither extended nor functional i don't know they were really you know using all of the language we now use but that was not the functional equivalent of the border and i can judge  speaking i can't hear him that's ok i've sort of that was a distraction here that i had to pick and so although this court has noted that it's difficult to make those distinctions between what is extended and what is functional that is the important question in this case a j craze testified when he testified before judge anderson that he had quote no clue close quote where the package was going to go after it left louisville and that's it you are seventy one and seventy eight he said he couldn't speak for you piastres because he did not know how they load their planes and that's it you are seventy  said he didn't know if the package would or would not travel to another u p s hub and if it did he didn't know how long it would stay there or whether the cans that the documents the packages were packed into would or would not be redistributed to other planes before departing the united states in fact he clarified he had never been to the philadelphia airport worked at the philadelphia airport didn't know anything directly from personal knowledge as to what happens at the philadelphia airport if that's even where this package would have gone the record actually does not establish whether it would have definitely been philadelphia or miami or some other place where the plane would have gone before departing united states antecedents that allows the government to search without cause without probable cause at all no reasonable suspicion and no warrant and if we're going to have a rule that is so invasive of a  person's privacy and a person's expectation of privacy then we have to have the the consequent reason for the rule and the reason for the rule is that it's the border and we've had a lot of development of that wall both in the supreme court and this core about so where is the border and when are we going to call it a border and a lot of the cases that judge starr relied on for example in her celgene decision are cases where we talked about delayed border searches and all of th second circuit and other circuit cases were very concerned with the idea of ok so it's come into the country and that's the point of entry and now it went further away for customs to be able to search it later and we want to let them do that but it was under their control the entire think there's always a very careful and detailed analysis of how are we going to say that the point of entry when actually the plane comes from you know mexico city and lands in st louis the example given in maida how are we going to say how far away from that it can be before we require not even reasonable suspicion and i'm not arguing on it that this would not even been an extended border search but it was i mean that's what it was if this is the problem here is it's not  of customs deciding to organize a lets do all of this at the hub when they got a couple of choices either they can just stand around the perimeter of the country and try to get the last stop wherever it may be philadelphia miami anchorage los angeles where they can do it all the same place since everything gets funneled through the same place and once they say they do with their it's all locked up and it's going out i mean they're radically you know louisville's a thousand miles from the ocean the practically speaking if that's where customs the size for practical even if we go one hundred percent this court just adopts her decision archy's distinguishable one distinction is they aren't locked there's no evidence in the record that the u p s s cans at louisville kentucky as compared to if that's cans or packages or whatever they call them at the oakland international airport were locked down actually is a word that jetstar uses in her decision it's a question that was asked of agent crace and he said well no they're not locked i've never seen a lot except that gets difference does that make customs isn't checking them again we don't know that your honor based on this record he said probably not usually i've never been there so i guess i'm not saying that i would disagree with the court if the facts had come out the way the court is describing them but we actually  information in this record other than agent traces speculation as to what u p s those practices are there is no think about this decision if the court were to affirm here and u p s can really do whatever they want with no there's no concern about u p s the now about it more than once or has tried to set up both at the hub and the perimeter the indication is that they've stopped doing everything at the hub which frankly is a pretty logical way to do it so again i'm not sure i can understand the factual distinctions you're drawing but i'm not sure that i do understand what difference they should my well i think until the supreme court says it doesn't make a difference the law is clear that it does and we're looking at the temporal and spatial proximity to the departure and i think in this case the problem i legal kentucky is rather landlocked it's you know six or seven hundred miles or a thousand miles depending on which way we're heading out of the country u p s and customs have entered into this you know convenience this business relationship to buy a border  when you're on the ground when you're on land when you're moving vehicles or whatever well you're well and i think the question is if we're going to have business relationships to i soon save u p s a lot of money i see and that's why they want to do this in louisville kentucky rather than an actual port city you know do we get to then search everything with bor certainly the the good feeling we have knowing we have a fourth amendment that we should hold that this was an extended border search and that would be even if this court were on the case submitted just previously to fully adopt everything that  judge dollar has said in her published decision i mean her case if this search was she found specifically after detail that's all presentation in the court that it was a few hours before the scheduled departure we have no information in the record other than an inference possibly from you know the date that the package was supposed to arrive october first or third depending on where you look in the record and the date it was searched we don't know how many hours before it actually left us airspace it was both separately and basically said if anchorage matters i find reasonable suspicion so even judge starr insults and realized that that was a little bit more of a push on existing case law and i think that that closeness that th was going to go over yes then specter they looked then as they did in cardona they knew it was going overseas but this court held that three thousand miles from the that is not a fourth amendment issue that's a totally separate contractual problem there what about the expectation of privacy well i think people then you can sue them you put a package of people put packages on planes these days and  that the factual record here was not sufficiently developed to conclude that louisville was the functional equivalent of the border if we were to conclude for more factual development and then and then decide the issue whether it's a functional equivalent of the border or extended border search against of more complete  record i think that i might leave discussion of that further action governing council your honor they do have a footnote in their brief where they try to justify if we were to get to reasonable suspicion on this record i don't think that she was really litigated  and i don't think i mean the only the only thing they can point to frankly is that this is a personal package from one person with a arguably middle eastern name to another person with an arguably middle eastern name from california to lebanon and i just on at this stage but in a firm as that it was the functional equivalent of the border could we remain and for the facts to be developed on that issue before we decided if it was functional equivalent of border or extended borders or i think it if there was if there wasn't reasonable suspicion then that issue would be dispositive and normally you know that the panel may be ready to decide that certainly make it but i don't think i have a case despite to the court so i think clearly this court has the authority and perhaps even the obligation to allow that evidence to be developed in the district court if you want to talk about the sentencing issue  good morning or honors may please the court doug fuchs for the united states i want to pick up with a question by judge clifton that is does it make any practical difference here whether the aircraft that was going to contain the defense package would have stopped someplace else and i think the answer on this record is clearly no it would not have made a practical difference and that's because there was ample factual developments in this record to establish that was there or this package went directly out of the united states or whether it stopped in one of three other locations miami philadelphia or anchorage it would not have been searched again officer crace testified no fewer than five times on that exact point saying  unequivocally that the package would not have been searched again because those other stops are either gassing go stops or there stops where a container is transferred to another plane  but in not in in no situation is customs either informed that the plane has arrived where do they have an opportunity to search again so the record here is complete and two separate district court judge judge monella and judge anderson both found that the louisville hub was the functional equivalent of the border and that and those two decisions were not  when the he as the hearing progressed i think it's clear on the record that judge anderson did in fact revisit that issue he allowed for cross examination he then asked questions of officer christ himself he allowed subsequent cross examination after he had asked questions and then finally he made extensive factual findings on that very point that it was the functional equivalent the border and that any subsequent stop and there's no evidence that there would be a stretch it was up at any subsequent stop would of the border which is not clearly erroneous so my question is on the standard of review i certainly understand that subordinate findings of particular facts will be reviewed for clear say that the ultimate conclusion of whether it's a functional equivalent of order would be reviewed for cl and i may have it in our poll in phrasing that point i think the ultimate conclusion is probably a mix question of the law in fact the underlying facts for instance your honor that louisville was the last place that the package could have been searched before it left the united states that i believe is a factual question which necessarily leads to the conclusion that louisville was the functional the excerpt of record where he's one hundred and you're right i realized afterwards i lost track of which judge was which but page one hundred does seem to include what you're talking about thank your honor pages ninety nine one hundred that that's my understanding as well extended searched side of the line so that reasonable suspicion was required yes your honor the government addresses the cardona case on page thirty one of its brief and i think the key distinction in cardon a compared to here is that in part the package in question was going to where the packages in question were going to pass into numerous hands before they left the country and therefore there would be additional opportunities to search those packages whereas here the entire operation of u p s and customs is set up in such a way that louisville is the final place and the record again which is i believe clear stablish is that there would have been no additional opportunity and that's height of factual distinction i think is a fairly bright line which which separates the functional equivalent of the border doctrine from the extended border search i don't know if the panel has any other questions if not i'll well could you address the issue as to why a social security card without a photograph should be considered an identification card within the meaning of section one zero two eight yes your honor and i think the issue there of course is whether or not the district court erred  rejecting or denying i should say defendants rule twenty nine motion the government introduced the testimony of social security agent paul yokoyama who testified that in his experience social security cards are identification documents and therefore the government believes it had an evidentiary basis to establish that element of section ten twenty eight with regard to the more strictly speaking legal issue why our social security cards identification documents i believe there are three reasons why that's the case first the reading of the statute would suggest that that is the right conclusion i believe that section ten twenty eight seven stablish is that social security numbers are means of identification when that social security number is imprinted on an official government issued document it converts the means of identification into an identification documents in addition your honor i think the only case on point and granted it's a fourth circuit case but nonetheless the only case on point is is clear that social security cards are identification documents under the meaning of ten twenty eight two and then lastly your honor i think it simply comport with common sense that social security documents so security cards are treated as means of identification and identification documents in our society in any number of different ways  i think those are spelled out and in the government's braith so i think there is a very solid foundation for the conclusion here that social security cards are identification documents within the meaning of ten to twenty eight in the military historically social security cards were not going to be used as means of identification but that's simply not how things have developed over time well i don't believe that the fact that it doesn't have a photograph of the individual is in any way dispositive there's certainly no requirement in ten twenty eight that identification documents contain photographs of the individual in question i still have those three anyway without any additional questions i think i'll sit down i thank you for your time about this argument of the reporting condition and and the parolee that or have it in their i'm not sure your honor i think the reporting requirement was was squarely at issue which is what is being contested here and in order to get of course that this court has found that that is not a violation and i don't think there's any reason any way to reasonably distinguish that case from this one with regard to the other condition and the other sensing condition that's at issue here the domestic violence condition i will i will confess that all of the arguments today that is the one where i think defense of the defendant can get some traction i think the other arguments here today are quite quite clear that they were decided properly at the district court however i do believe based on the fact that judge andersen made clear to the parties at the beginning of the sentencing hearing that it was his intention to impose a domestic violence condition and the fact that the fende and after conferring with counsel shows knox to have jacked that that puts us of the defendant at the sentencing hearing concerning the nature of his relationship with his wife ok thank you thank you thank you very briefly there at the time that judge anderson advised counsel of the us a sense of hearing about his intention to impose the domestic violence treatment condition the question was not whether he was going to object or not but whether he wanted more time which is normally the appropriate procedure if they're going to impose a nonstandard condition of supervised release so you know like really it's under playing arab standard it's not something worse in terms of waiver forfeiture on because the question was did you want more time not whether you were going to object and i would just ask the court to look very carefully at age increases testimony and what he actually was able to testify to from his own personal knowledge rather than his speculation he often  couched his answers and that's my understanding and i think that if this court's going to rely on what he said it should be based on things that were his personal knowledge or that he testified to with knowledge based on business records or some type of reliable information and this is just what he had heard and what he understood we really don't know from this record much at all about what happens with u b s to that issue my impression i could go back and look at it myself my impression is that he was limited with regard to his ability to talk about the express company this was u p s right what u p s did but he was more knowledgeable with regard to the customs of the governments practice and it seems to me that's the part that matters if customs is decided to set up shop hey this is where we're inspecting things for the border then does the manipulation of the package afterwards by the freight company make very much different i guess it could your honor is one of the things that was tried they tried to develop at the hearing was this question of ok so