thank you good morning and may it please the court in one thousand and eighty four the united states supreme court in the leon gave us what is now commonly known as the good faith exception to the exclusionary rule but  items to be seen used falls outside of the exception because such a warrant is one that no law enforcement officer can reasonably rely on the united states supreme court in two thousand and four approximately twenty years later reiterated that only on principle that i just cited in a case called groby ramirez and to this day that legal standard is as clear as it is binding and directly applicable to the first issue on appeal in this case in this particular case with respect to the suppression issue the court below correctly concluded that the searches of the hotel room and the car were warrantless in the sense that the warrant itself that the law enforcement officer the detective sergeant mike camp of the st louis police department applied for did not actually authorize the search of either the hotel room or the car where the trial court erred was in concluding that the good faith exception nevertheless applied with respect to the warrant the trial court's factual conclusions the warrant it self did not describe the place to be searched or the items to be seized are any accorded significant deference under the clear air or standard but b are very obvious even to this court were to independently look at the and if you look at the affidavit it sets forth clearly what they were looking to search and why they were looking to search it then you look at the war form itself and the war form at the top explains that there are look and search a hotel room and a gold mercedes and then it says whereas the judge prions the allegations supported by the written affidavits blah blah blah you're commanded to search said person above well there is no said person above you know and my guess is that there's a war form someplace that says things could be searched and there's one that says persons to be searched and somebody stuck this warrant on the wrong form and my guess is if you look at the bottom half of that that there is almost no likelihood that the warrant boxers that executed the war never bothered to look at the bottom language or they would've gone back to the judge and said hey judge this is not what we asked for is that what you meant to do but more probably was drafted by the officer or the county attorney and somebody just dropped the ball there and they looked at the hotel room the gold mercedes went out there and now by definition you're saying that can't be good faith yes your honor and for two reasons one the district court itself correctly concluded that the warrant lacked any incorporating language incorporating the affidavit or the application and that alone is again subject to considerable deference under the clear air standard but furthermore that's significant as a matter of case law but furthermore the warrant it self just as a matter of fact it might not be significant given what your honor has pointed out the warrant itself that you referenced judge erickson does actually reference a person or reference t edwards and that's at the top of the warrant itself on the paper that we've submitted as part of the record so as a practical matter what happened in this case lou still cannot survive the good faith exception but it only but more importantly your honor the reason that even if all of that is if the benefit of the doubt is given to the government in this case the warrant does not even attempt to particularize the items a fatal flaw and very binding precedent not only in cases like leon but more recently in group b ramiro in that particular case it could not have been a more clear fact pattern the application itself requested the law enforcement officer in that particular case requested the opportunity to see particular items i believe there were guns perhaps ammunition things like that at a different set of circumstances but the war in itself did and this isn't in the transcript in the record i actually asked the law enforcement officer sergeant my camp who executed the warrant what criteria did you use to decide what one would think that the appropriate answer to that question would be i looked at what i could seize under the search warrant and i used my training and experience and did my best to apply that there was no answer much less any coherent answer as to what criteria she used because there was court must reverse on those grounds with respect to that particular issue the government's in its brief at the very least seems to focus on the subjective purported belief  sergeant and i camp when executing the search warrant but i want to point out with respect to that is that as a practical matter as a matter of law what's crystal clear in leon and grow and all of the  the circuit and elsewhere that follows that is that it's an objective test as to whether a reasonable law enforcement officer based on the warrant could have reasonably relied in good faith and believing that it was an appropriate war so i think that a perhaps long winded but direct answer to get back to your question judge erickson is but the simple fact that there might be what i would loosely perhaps diplomatically call it copy and paste error doesn't somehow cure this matter of constitutional significance specially because it lacked even a suggestion of items to be seized and i think that that is candidly very determinant if because the government did not even attempt to establish that this error was harmless beyond a reasonable doubt and that's the heavy burden that the government would have to meet just survive this constitutional problem this court should as a practical matter reverse on those grounds alone the second issue that i wanted to address is actually the third issue an appeal is the issue of federal rule of criminal procedure sixteen a one and the issue of the expert witness and in particular the notice requirement what the government provided in this particular case was notice that it intended to call an expert name derek steiger to as a law enforcement officer basically a detective in northern california and that he would testify about certain subjects we objected at the appropriate time and there's no dispute as to the timeliness of the scope of that objection and i believe that the government failed to comply with the rule sixteen a one g because that rule since one nine hundred ninety three since it was amended expressly requires disclosure of the opinions of any expert witness and the bases and reasons for those opinions to this day the government has not disclosed establish reversal on this ground and i think we have established that as a practical matter this him pitted the defendant from properly framing as the district court said in that case a dobber motion from effectively preparing to cross examine this expert on what he would say and from considering retaining our own counter expert as a practical matter that was significantly prejudicial to mr serve because the first time  learned what detective stagger its was going to opine which in particular was itself problematic was when he testified on direct examination at trial and that's exactly what rule sixteen a one g and the cases we cited enforcing that rule to prohibit from happening and to prevent from happening the second issue with the expert issue is that expert testimony under rule seventy two evidence has to be based on reliable principles and methods and in this particular case as we appropriately in time we objected this wasn't based on any methodology this detective basically testified and i don't mean to oversimplify i want to be fair but he basically said i've interviewed a number of alleged prostitutes and a number of alleged people involved in the sex trade and based on those interviews here's what i have come to understand certain subcultures to be and certain terms to mean and things like that and that was offered as expressly as expert testimony over objection at trial this raises a very serious calm confrontation clause issue that we properly preserved at the trial court because this detective affectively did was parrot back testimonial statements made to him in the course of interrogations of people he was interviewing alleged prostitutes alleged pimps maybe there's a better word he isn't a federal  of those statements so want to quote unquote expert comes into court and says i understand the word king for example to potentially refer to alleged pimp when what he's really saying is someone i and told me that he is parroting testimonial statements in violation of the confrontation clause it's a very you know the one thing is throughout the country there's been a lot of these kinds of experts that have been called in really a number of types of cases but most commonly in drug cases and human trafficking cases and they put these people on who've worked thirty years as detectives and they say the word daddy means pamp opinion the way that we do sort of all the other scientific experts maybe just look about common practice and trial courts all around the country is when they say we're going to call a human trafficking expert we're going to talk about the business right  decided and what was has subsequently been adopted into binding law into our practice is that this expert requirements apply to any kind of expert that's being offered in tendered as an expert as detective experience this refers to coach and or whatever it may be perhaps that falls outside the scope of expert testimony in a certain case and therefore outside the scope of rule sixteen a one g but there is no dispute in this case that detective stagger it's was testifying consistent with that he admitted under oath your honor but yet no involvement at all with this particular case even further underscoring that this was truly quote unquote expert testimony and it was it was just a defective notice with respect to the next issue which admittedly is pretty extensively the government with killed substantial brady and material from until day five of a what was affectively a five day trial technically six days if you include the last day of deliberation the government had interviewed eighteen months before trial a key witness named michael ren the details of that interview are set out in the record and in our briefs and the government for some reason notwithstanding our many many requests and the arrangements of this case to be candid with chilled this testimony this case the interview of mr reddy was conducted by sergeant mike camp and special agent lynch of the f b i who sat at prosecution counsel's table throughout the entire trial well we were making statements that might have been examination and i believe it is i believe the law supports this really is as the supreme court said in one thousand nine hundred nine the greatest legal engine ever invented for the discovery of truth the government's position saying well essentially well you got it eventually you got it so that you could theoretically call special agent lynch and inquire about this interview really got the opportunity that mr zimmerman had to cross examine the sole alleged victim on this important impeachment evidence and that sentencing what the court did in this case was substantial procedural error in the court up flight a guideline that only applies to conduct described in a federal statute eighteen u s c two to forty two but the court read out the requirement in that statute that that only applies if the alleged conduct occurs in the special maritime and territorial jurisdiction of the u s or a federal prison that term special marit i'm sorry territorial jurisdiction is actually defined by statute it refers general it's a native american reservations space ship islands with want to i mean it's a very very narrow set of circumstances the court did not explain the reason for the sentence that imposed other than a fairly boilerplate percent to thirty five fifty three am the guidelines i'm giving you one hundred forty months did not even address any of the thirty five fifty three factors an investigative team that started at approximately five am after they received a nine one one call from the victim who was hiding in a trash can a dumpster after she had just escape upon finding the victim the investigative team then went about trying to pull video from the hotel pull video from the building security they when then went about their exhaustive  attempt to get as much information as possible in the interim they did generate the search warrant affidavit so at x that you look at the district court document which is one hundred two because that acts that when you look at it you see that this case is  from grow which the appellant cites and that in roe it did not deal with the search warrant affidavit that was incorporate it with other documents and this particular case when you look at the search warrant that the judge signed you will see that the judge actually signed the search warrant affidavit as well as the search warrant so in that our argument is that this case is more similar to the case that the cases that this court ha there and he believed the allegations of the complaint to be true and that there was probable cause for issuance of the search warrant and the search warrant specifically reads whereas the judge of this court from the sworn allegations of said complaint and from the supporting written found that there is probable cause to believe that allegations of the complaint to be true and probable cause for the issuance of the search warrant so in this case we would argue there was a technical error made however we would axe this court to recognize that the united things as cell phones laptops large amounts of cash condoms lubricants receipts paperwork all relating to the crime is that a sufficient description of the end used to be search warn your opinion the items that she thought she would find in a hotel and there's never been an argument that there wasn't an abundant amount of probable cause in this case and there's never been any allegation of any false statements we have probable cause we have no false statements we had good faith sergeant one can't testify that she believed that she had a proper warrant to go forth and execute on both the hotel room and the the ickle and that's exactly what she did in addition to the good faith argument the government also maintains that in terms of playing view these items were in plain view when the officers first came into the hotel room so based on the fact that the incriminating nature of the items that the officers saw when they first entered the room and the vehicle as those incriminate the incriminating nature of those items that was obvious that was the basis for the officers to also be able to  these those items so the district court did not there was no clear error were guarding the district court's legal determination that the evidence should not be surprised now when we go to the issue of the brady glia argument that the defendant makes that the court note that and this particular case we dealt with a large amount of discovery the government turned over five thousand pages of documents to these two defendants and that in that included discovery for for be information that does not even exclude the west india the hotel video the security footage the nine one one call the dispatch tapes so all of this information was turned over this was have but considering as soon as the government's attorney found out that this three o two existed before we even arrived to court the government's attorney requested that the witness be brought to the court immediately so before the defense counsel even requested that the witness was on his way down and so in addition to that this three o two was turned over insufficient time for defense counsel to use it so in this particular case the rule of brady is value number four he obtained that opportunity he did question agent much about that he did not ask for miss cross will therefore there is no clear error on the district court's part for failing to sue spontaneous order a mistrial requested that the government bring back the victim in the case the government always makes all of the witnesses available for recall there was no request made there's no one in the record that says that and in addition to that this three o two was really not material because the accused must show that there is a reasonable probability that if the allegedly suppressed evidence had been disclosed at trial the result of the proceeding would have been different if you look to the district court memo memorandum an was not suppressed defense counsel had an opportunity to use it to question whom ever he wanted about it and if you would go to trial volume four page five and six you will see the court asking mr golf and what  you asking about this and on pages five and six the first response was that's a good question your honor but then he just goes on to ask to speak with agent much about it the court then informs him he's allowed to bring pronouncement of this and so first and foremost the government what argue that the cost reference used by the district court was supported in this case by the evidence the calculations of the guidelines were reasonable and so they should be review for the abuse of discretion so in this case the district court was allowed to use the defendant's relevant conduct in sentencing him and this case that relevant conduct did include  testimony from the victim it included testimony regarding the extreme pain that she was in this this involved the application of the guideline regarding criminal sexual abuse sponge being lodged in her badge in a cavity and the fact that the defendant mr serba actually attempted to extract that with tweezers which caused her more pain then she had to go to the hospital in order to get the sponge removed so and the fact that the cross reference has to deal with criminal sexual abuse it has and the the evidence put forth at trial also supported the fact that we should use the cross reference so therefore the guidelines were properly calculated and in imposing this sentence and this particular case the district court did pronounce sentence he did if you go to syncing transcript thirty five he did explain that he noted the downward departure and all of the defense counsel's argument and he did reference on page thirty five of the sentencing transcript that he was sentencing present to the sentencing reform act and provisions of eighteen u s c thirty case the district court did not error in calculating the range punishment in this case the calculations and the sentence was reasonable now one thing that i believe the fence counsel did not get an opportunity to get to but probably will after i sit down has to do with a mistrial request regarding a juror and in this particular case i had x that you all go to trial by five page board and  you'll see that the district court stated at that time that it was going to declare that a mistrial was going to take place in the presence of the jury so in this particular case of the district court was declaring a mistrial outside the presence of the jury and would be no need to go in front of the jury to declare it so in essence the government maintains that there was never a mistrial declared in this case if you go to trial by a number five and go to page four you will see that the court under no just not the case in addition to that actually the court to note that under federal criminal of criminal procedure twenty three b three that permits the use of an eleven person jury and a trial at the discretion of the trial court particularly in the case of a protracted trial so we couldn't even move forward with eleven jurors if need be nevertheless there was no mistrial declared in this case the parties agreed not to go forward with the eleven and there was no prejudice in any way to the defendant in this review so the review of the evidence is going to be in the in the light most favorable favorable to the verdict in this particular case as outlined in our brief there was a substantial amount of evidence presented that and this particular case there was also testimony about law enforcement officers and the victim were guarding the groups interstate travels and movements while engaging in prostitution in addition to the testimony we also acts in addition to photos condoms sex toys the not one one call the judge the district court even noted in the memorandum an order denying the motion for truth new trial that there was compelling evidence of defendant's guilt which renders it unlikely that there would have been a reasonable probability of a different verdict and that's district court number two fifty eight docket number two fifty eight so in this particular case there was the fission evidence presented in this particular case a reasonable jury could in to conclude that the defendant was guilty and unless there are some other questions i believe that i have covered everything that defense counsel has brought up apparently not so we thank you for your argument so your honor in light of the matters that have been put forth totally inconsistent with this crawford cross reference and the court did not even allow brain on the idea that it was finding out by a preponderance of clear and convincing evidence or whatever it may be the second issue is with respect to this mistrial the court did in no uncertain terms declare a mistrial the court said this will be a mistrial that's on page four of that volume the court said to the jury there are two choices we can declare a mistrial or go forward with eleven the parties have to agree on that the parties have not agreed on that jury was clearly aware that it's mr who would be the one to not want eleven jurors versus twelve jurors because the government's burden with therefore be lower and even the trial court itself acknowledge on page four of that record that this will be a quote interesting question for appeal and quote i think it's appropriately recognized as so finally your honor with respect to prosecutor just made that essentially the affidavit was incorporated into the warrant because it was signed by the judge was not raised at the trial court lover it was not objected to at the trial court level it was not raised  it and it's not actually accurate because the affidavit itself was not incorporated as the district court itself found and the district court docket number one twenty one at page ten that's a finding that subject