me find what i was going to ask you you know our issue of course is with the district court having classified him as a career offender ok and we have a multi pronged attack i have to say i want to go i want to go to  evidence in this case who decides whether or not the crime qualifies right that is how would proceed to that would not matching it up to some other judgment of conviction you know that's ok and the judge has to get their biceps to by a preponderance of the contending that based on the instructions given the jury and the actual count charged in the indictment so you have my but my problem with the instructions given the jury is this is a finding by the judge is it not there is a finding by the judge that there was no witness tampering if that's where the court's going to act like yes i know that the judge makes the finding that this qualifies as a crime of violence he did make that finding and i think that's the beginning ok is my question is are you suggesting that there was not sufficient evidence before the judge in this case from which you could make that in light of the jury's acquittal on the other count i believe that that's what he has erroneous even if the five acquittal on the other count applied to apply to all the crimes of violence if you will doesn't the case law say that a judge can make a finding on the sentencing matter even in the face of an acquittal on a preponderance of the evidence in the face of the instruction that explicitly all of our law based on bases itself why didn't you know my jury following the instruction that's why you and i are having some difficulty here we both agree that if even if the jury had acquitted your client on of the relevant conduct the judge could have found by a preponderance of the evidence that your client had committed a crime of violence that i thought it's unfortunate case law but it's there so that my question is are you saying there wasn't even enough evidence for him to find it by a preponderance on this record yes that is part of that is part i just want to understand your argument and i think i can understand the court's concern i don't mean to be presumptuous but i it does resonate i do understand it i think this argument has strength precisely because of particular fasts that this record presents the error in the instruction and i know the government spoke at great length about  arguments and how it steered the jury away from this and so forth but it doesn't change the fact we presume jury to follow the instructions that they're given the jury was given a defective instruction the jury did return an acquittal on count three and i think that he needs into why his subsequent finding by the court was and it was an error i think i understand your argument and i but i was having some difficulty at least with the brief figuring out precisely what you're i understand if i may i'd like to reserve my discipline from yes right to a different area for me just for a moment and that's the the evidence that was obtained from mr at till ya know in the strip search and i know it may be a stronger argument for your codefendant were a different argument perhaps we'll hear from your codefendant but what could you review for me what is your argument as to why that shouldn't have been admitted with respect to mr gill and also the significance of that evidence which i wasn't clear on fundamentally because there's no true tie to mr gill we have reference to the m and a and different so so your argument is that just having his moniker on it wasn't wasn't sufficient foundation and no clear indication as to whether other people other inmates in the gang use that same moniker which is frequently the end of the case with many moni so we just simply don't have a sufficient foundation here for that have been introduced as our contention taking it one step further let's assume for purposes of discussion that there is a basis for questioning whether or not that should have been admitted did it matter in of evidence it was different it showed more of an ongoing active participation in the gang as opposed to what the telephone calls may or may not have been and that your position taking that evidence out of the case there would be insufficient evidence to have convicted gill i think it's a prejudicial error it's harder for me to go to their tor your honor just said that it would be insufficient evidence there are other aspects of sufficiency that we have challenge in the brief i don't know that i could pen this particular piece in that johnson eliminated the due process argument under the fifth amendment right johnson however also overruled the the former president  james sikes and began in the problem i have is that the case that was one point here the park case united states versus park which held which is a pretty johnson case holding that ruled the precedence that underpinned the part case so park is no longer good law after johnson this is pointed out in the lead case i believe your honor was rely any more on park is no longer good law because the cases on which it relied were expressly and implied lee overruled by johnson by the supreme court i want to understand your argument your argument is that we no longer can rely on our precedents for holding it for fifty nine was a crime of violence so my next question is if that were true can we find to be a crime of violence for the same reason that our presidents did it did to supreme court say no for fifty nine is not a great i don't believe it's ever said for fifty nine is not a crime of violence and so if our previous presidents have been put into doubt as you say don't we have to address that issue did of today well you get into the more fundamental question and the judge i could have said that it would be procedural error to rely on the to rely on the career offender precedents and then the supreme court told us it wasn't unconstitutional so i'm having some difficulty with your argument that somehow the supreme court's told us that for fifty nine is not a crime of violence and if they haven't told us that even even if you're right that it if somehow undermined our previous precedence don't we have to in this case do novo decide whether it is well the district court the problem is this is this clause doesn't exist any park park if it's no longer good law then the district court because the district court and that's what i'm asking let's assume for a moment i'm not sure i'd get there with you but let's assume for park is no  and the government says they have two previous convictions under four fifty nine your client has to previously been for fifty nine those are crimes of violence yeah and doesn't somebody have to decide that issue even if we don't  i believe under taylor if you go back to two table or four fifty nine is categorically overbroad and i gave the example in the district court to the judge that let's say somebody walks in to a sunday open house intending to steal some silverware that's burglary but it's an example of why california burglary is categorically overbroad and so therefore it would not qualify under the categorical approach of johnson and i also made the argument in the in the brief that if you if you there's a surplus it's argument under that former clause because if you say under the in numerated felonies cla enumerated clause but says otherwise and then it goes on to say in my argument was that if the otherwise covers everything part of that surplusage and so that is see that is the problem to interpret it the way that your honor says so for those were the two other argonne i think i understand you want to turn to wiretap yeah i mean it really comes down to this if state wires are a title three procedure as the government argues we lose if state wires are not a title three procedure we win and the point is that it so it's a do some work the other way too so when somebody goes into a state court under title three seeks a wiretapped or they have to show that there's no ability to get a federal i don't believe that there's that sort of a issue in federal court  correct and if it does not then it qualifies as another traditional investigative procedures and there go nobody disputes that they could have done the whole investigation and state why is it in the  force started out with state was to be your argument is that a state wiretap is an other investigative procedure exactly but isn't it exactly the same investigative procedure i mean in normal parlance no one would think that an other investigat was something other than a wiretap right well other investigative procedures in my mind means non title three so you get back to the structure that shoot just a minute though seems to me on from one of the cases that they won you know read that's that that was i read situation that in my marriage project picking up and actually serious question if you found any case where that analysis has been applied to the same defendant in both cases you know i mean there's there's no it's in my argument is the structure of the statute and the reason that one has the twenty policy the statute for a moment normally what i mean with the policy to me says is we don't want to let you wiretap somebody unless you've exhausted other avenues of recourse in this case it's harder to see that policy being violated by just simply saying we're going to change the name of the guy who signs the warran from a state judge to a federal judge indeed without any insult to state just to say courts there's i know how the federal courts scrutinize these things and my guess is it requires a high you know i'm pretty much more confident that the judges reviewed it showing is to make sure that before you go to this extremely intrusive investigative step that you have exhausted the less intrusive investigative steps if the state has the same level of intrusive in this if you will you're talking about what you have to show to get the state wire and i understand that's slightly different but it's just as intrusive as the federal wire it's just is as much of a concern that that  would have in the federal context so why should you have to exhaust it from a necessity perspective before you get a federal wire it's more restrictive under the state more protections for the individual because there's when the actual investigative technique is just as intrusive it's the same investigative technique it's a wiretap right it's the same electronic techniques but there's higher hurdles to exhaust the most protective the highest showing before you fall back and have a lesser showing i mean i don't i don't quite understand why the level of showing you have to present really addresses the necessity aspect of title three well title three as i read it is you don't you don't go to state to federal wires unless you have really no other way to do it and so first i think that's because you don't because why the time you get to the wire you're intruding on on a an individual's rights and i level that's far higher than all of the other steps that lead lead up to it and that's where your argument doesn't creative but i don't see it really going to the whole concept of necessity under title three well i think it comes down to the pivotal issue is whether or not state wires are a non title three procedure under the structure of the statute i mean this this may be just be an anomaly in the statute that needs a legislative fix but it seems to me you read the structure of the statute and the fact that state wires are  you know a completely different source of law having nothing to do with the federal government they are regulated by the federal government but not a creature of the federal government and if that's the case it qualifies as an other investigative procedure i think we have your argument and you you've heard over we'll give you a minute for rebuttal later if you think you can if you need question about whether a state wiretap is non title three investigative techniques are really with the statute asks is whether it is in other investigative technique and so if we look at the statute itself which talks about other investigative techniques it clearly means other than wire taps can you respond to a judge to shamus question and read where you said choice said if you're wiretapping a you can come in and say  that's other investigative technique that hasn't led in to me enough on the and so i'd like a wiretap authorized for b so why is your argument consistent with reed well but because that has nothing to do with other state wire s as others investigative techniques there's a separate requirement in section two five one eight that requires the government to disclose all previous wiretap applications yes i thought i'd let me ask the question to me and i'll just wiretap application and i say to the district judge i'd like a wiretap application and be and to show you that i've exhausted all other investigative techniques let me show you that i've i've already tried to wiretap his but he never says anything about b can you use that previous tap on a as an other investigative technique to show that to show the necessity for the new wiretap and be no that's not an other investigative technique that's a wire including three wiretaps no further why not because we're in a wiretap title three statute that's talking about wiretap so when it talks about other investigative techniques it means other than wiretap for instance what about suppose you have access to a private wiretap is that covered state proceed at a place you must have least you must at least comply with title three but the state has the ability to set a higher ceiling it does that's correct and if i can circle around to the supposedly higher ceiling in california does it matter now i don't think it does matter but i also just want to point out that the case that mr brown has is relying on for that which is people be conklin doesn't really have anything to do with law enforcement applications for wiretaps it has to do with the private offense of illegal wiretapping somebody so let me change can we change this scenario but what if you went to a state judge for a wiretap on a particular showing and the judge said no could you go to why should you be able to get one if you've applied to go well there could be many reasons one is as happened in this case the state wiretaps ended you know that they have time limits right so it could be that the state wiretaps and in fact the argument that mr harris is making is not that previous wiretaps necessarily excluded but they're saying there should if you're already conducting a state you're going back to the state court why not go back to the state and for policy reasons that doesn't make any sense at all because obviously it's the same interference with privacy under the state combined in some way that's that's correct in fact they found out that there was one suspect who was part of both investigations and so a federal case was sort of spawning from that but that also points to another difference between state w and federal wiretaps which is you can't investigate a federal rico case with a state wiretap because it's not listed in the california penal code as one of the crimes that can be investigated but you can it with maybe a  investigate pretty good offenses that's true but you can investigate rico there may be some overlap but there is that difference between the two if i want to investigate a rico a federal rico case i cannot go to a state judge and put in the affidavit we're investigating a federal rico case that i can only do under a federal wiretap can you can you address and we didn't talk about it much with you're here with your colleagues here the argument that the judge somehow missed instructor failed to instruct the jury correctly on implied threats oh on implied threats the that the argument is that the jury came back with a note and it said can a threat be implied that was the question and the and there was some argument about to how to address that everybody agreed that under california law for extortion threat can be implied but defendants wanted to add some additional language about what it implies about what an implied threat would be and whether there had to be a physical threat or anything like that the judge just said no if we all agree that they can be implied that's the only question that the jury asked that's the only question we didn't ask what is an implied threat they did not that he asked whether a threat can be implied that's correct the judge is response to question was and the judges were then you also tell them to look at the instruction of the jury note said threat as used in the definition of extortion does it have to be explicit or can it be implied and the judge said a threat can be explicit or impl bras was it it was admitted against mr burrell households all right let me let me take some time to look at it because some of the foundation evidence for this is in different parts of the record so let me see if i can point out what's going on going about but certainly what i'm interested in is what's the evidence what's the evidentiary link to mr craig right so i'm trying to get there so mr gale we understand there's another there's a note allegedly addressed to and and it said hot on it it had sun kissed stickers on the outside which we learned from other testimony in the case was one of the signs that was used by by the way to indicate gang membership  gang association the sheriff's deputy that found it said that unit five was the high security area of the west valley detention center where members from the mexican mafia were how was there evidence of mr bras was house there  there was i didn't see any right there when i didn't see any that's why i'm asking there was there was some evidence that he was housed there but they're not not during that period of time no your honor there was evidence that mr gill was housed there that was introduced early on in the trial there were jail calls that were played for the jury from march of two thousand and twelve which is just a couple months before that and one of three let me get back to mr bras the can textural clues within the note itself and other evidence that inform the jury about who members of the gang were that were mentioned in the note tell us that the note was intended for interpreted for the court now there was evidence so it should be for you go on that's that's a note that indicates this was intended for members of the gang unit five that's right tell me and that maybe that's enough but is shown that this was intended for the gang there but i guess i'm just interested it specifically to him so the specific link would have to be inferred by the jury from the following facts that that that there were indicia of associations with hasse was a senior member of the gang and also a member of m e but the other clues are that we also know that these were gang members that are both mentioned in the note and that brought the note in mr navarro who was the government's here comes a package that's clearly addressed to the gang two senior members of it in mr and so it shows that this is part of the conspiracy it shows that the rico conspiracy is is ongoing through december twelfth or december seventeenth two thousand and twelve whether or count three right and for count three the jury only found that he had conspired to distribute methamphetamine and not heroin and these were packages or there was one package of meth that was intended i believe was intended for it must have to do with methamphetamine it could have it yes because you don't know if you know there was a government early i you know look i think that there are many cases that say inconsistent verdicts were the jury don't necessarily i'm t rationalize yeah i think there were plenty of calls where mr mr gill talked about distributing methamphetamine and certainly the jury could have convicted on those calls i know that under the rico under the record tried to take back to go back to judge s soonish question your argument is not that there was a specific indication that this package was headed for mr bras it might have been but you don't have the kind of evidence you had with mr gill that the package was headed to this package was directed to mr mr bras other than the fact that it was being directed to a senior member of the gang and youth and he was a senior member of the gang that you know that's correct there was circumstantial evidence i don't think it was a strong for m ross but i don't think it matters because it was still relevant evidence of the existence of the racketeering conspiracy let me turn to the sentencing questions if and i'll start with i'll start with mr gill sentencing issues  there were really two issues that he raised in the first was if the jury was instructed on witness tampering and that is not a crime of violence or a drug trafficking conspirator drug trafficking crime for purposes of career  offender then how can the rico and my question to your colleagues the same question i asked you does it matter at all with the jury was instructed about in this case i don't think it does the judge is making a finding based on the record whether a crime of violence will show that's correct and i don't  it matters for obviously the reasons we mentioned in the brief but for the additional reason that it was not discussed earlier is that the prosecutor in this case told the jury we don't have any evidence of witness tampering it was it was a jury instruction that was in there inadvertently and the jury therefore and there was no evidence of witness tampering the jury could not have convicted on witness tampering anyway all the other predicate crimes that are mentioned in there are either crimes of violence or   and the rest right doesn't guess perhaps this is a follow on to judge her which of course it doesn't really matter if there was evidence of witness tampering in the case if there was also evidence that supported violent criminal conduct would that would that then put you in a difficult position or is it your position as long as there's sufficient evidence of violent conduct by on criminal conduct we could have witness tampering it would be met it wouldn't matter for purposes of the judge looking at the case he's entitled to look at predicate offenses because that's what we say you do in rico cases to determine whether it's a crime of violence and so it really doesn't matter if the jury convicts or if the jury if there's a case that we did not discuss in the briefing and and but it is a case that's on point and i don't know if it's fair for me to mention it now if what if we think it's called the united states activity at issue and the jury instructions require the jury do agree on which sure that's easy of course of course that qualifies that's not what we're asking well we're asking whether or not it would qualify even if the jury instructions allow them to  convict on a nonviolent crime if the judge there after in reviewing the record thought there was sufficient evidence of a lot of work i think in that case as the insight the case that we have in our brief  judge could if you only indicted somebody for conspiracy to commit extortion look behind the evidence and say well and i'm sure your witness tampering i'm not sure you could look behind the evidence in that case and find find a  violent if the only thing charged in the case of witness tampering i think i might agree and i want to be one of the well but in this case one of the alleged crimes has to be a crime of violence and the judge has to figure out whether or not he actually did it that's correct though i want to ask you one more question sentencing the united states supreme court has granted certain sessions were supposed to my which is involves the residual clause in the immigration statutes the predicate crime in that case or the previous understand it's not what i'm asking you i'm just asking whether or not you think the supreme court in this case will address the question of whether four fifty nine is a crime of violence i'm not sure i don't think they will and even if they do i don't think it's necessarily going to matter for purposes of this case because what we're dealing with in this case as i said is that there's it in once a case on point united states versus park and i don't think it's going to matter under this particular guideline what i saw was mr de maya could win that's true if this if you convince the supreme court i missed it by i don't know who it is that for fifty nine was not a crime of violence because then the court could say we don't have to worry about the constitutionality of the residual clause in the immigration code so i ask because it's a possibility i don't think the certification is directed to that but i asked that's why great but the question in that case has to do with the immigration code and not with the advisory guidelines and so and as we know after booker and back calls that analysis under the advisory guidelines is much different in fact there is no due process vagueness claim after battles where there is no i thank you for responding my question and your times for ok thank you now and i know you have some time for a bottle  if i do yes and you can use it ok i'll be very brief i think the court has the sentencing issue we presented well in hand but it seems to me we've lost one of them a point that does deserve to be focused on and your honor has brought up the fact that the court can make its finding by a preponderance and i were not quarreling with that the reason i think this argument still is persuasive here is because fundamentally i think the district court erred in making its finding and the reason it erred is because of count with the erroneous instruction also with a question from the jury about the threat these are all reasons the district court should not have made the finding that it did and that's the reason we believe the argument still prevails and put points for the court's consideration on the state where issue number one consider consensual recordings by a c i is the same electronics it's obviously a nine title three procedure and consider whether or not state wires fall under the same category so let me as as as consensual record thank you for reminding me because i want to want to ask you to respond to the government's plan as the government's point is that state might you must satisfy under under under federal law which is supreme in this case the requirements of title three before you can obtain a state wiretap that's my that's what i was trying to give by the by the f c c example in a television station that what it was what the law says is under twenty five sixteen sub two is that a state wire has to be in conformity with title three requirements in conformity with and that's why i gave the example of a television station must broadcast in conformity with f c c regulations but that doesn't make it a federal broadcasting station just because i guess the another way to say it is just because you have to comply with a federal regulation doesn't make it a federal procedure i understand your argument and so anyway the question is whether or not state wires fall  intrusiveness if you will that's a very different and less intrusive investigative technique isn't it then and the title three wiretap and state wires are less intrusive than federal wires and that's the only reason we know that's what i don't understand well because that's laid out in the thought for example there's a two party consent rule in california and in federal there's a one party consent i mean there and that help in case goes through other examples i mean some of them are fairly technical but it does not hurt you these my difficulty with that is so pure federal investigative officer and you want to do wiretap you say i don't want that state wiretap which is so restrictive i'd like a federal wiretap which doesn't have these restrictions assuming they exist your opponents as they don't exist but let's assume why you so we're saying it once before when state officials have gone to a state court to get a wiretap under more difficult conditions well sometimes you can sometimes there's all sorts of traditional investigative procedures that are more difficult i mean it's really difficult to get a interview to see undercover agent into a drug cartel you know government is there after precluded from a paying a federal wiretap yes long as you're if the state wiretap is productive and if you can take down the whole ontario black angels through state wiretaps there's no need for a federal wire