good morning may it please the court my name is christy merchant and i are present the appellant mr jesse career or in this case there are three issues that the appellant has raised in this case and our first and most and other members of law enforcement in which he was not engaged in a investigation with until several months later are you complaining that there was hearsay i mean if we are complaining substantial basis in order to credit hearsay in a search warrant affidavit in a search warrant application and so what we don't have in this case is the substantial basis for which we can credit that hearsay information for example in the first paragraph even though there is information that says that mr herrera has been found to  have methamphetamine distribution the confidential informant that gave this information to detective heath cock didn't have any other basis it wasn't it wasn't specific it wasn't particular about anything in really regards to his information pertaining to mr herrera furthermore that information was stale and it was more than a year old whenever detective had cock included that in his search warrant application furthermore when we go further into the search warrant affidavit there is no basis of knowledge when detective heath cock explains that information that he received from another report involving a separate confidential informant which made similar and particularized allegations against mr herrera and because of this there is no way that we can know what what the basis of knowledge was for these individuals that mr hitchcock depended upon during during his execution of a search warrant affidavit what do you do with a good faith exception the good faith exception in this case does not apply and the reason why the good faith exception does not apply is because this is a bare bones affidavit there has to be  good in order for the good faith exception to apply there's got to be some reason for an officer that is executing the search warrant to have a good basis for believing that there is probable cause in this case  individual who not only wrote the the application for the search warrant he's the one that's on the search warrant affidavit he's also the one who executed it and when he executed this search warrant he knew when he wrote this search warrant that he never saw jesse herrera conduct a controlled by he never saw jesse career with any tribes he never saw jesse herrera with any kind of money and he never saw a rare or engage in any kind of drug transaction everything that detective heath caucus states in his affidavit is based on hearsay information that he has not some instance of some facts that may create information to help them build towards a probable cause determination but it does not satisfy the substantial basis to credit officer here and except that from our source sources he does not have to have personal knowledge they don't have to have personal knowledge which they do have to have a b in participate had to have participation involved in the any of those investigations and that's that's clear even on the search warrant after affidavit it says that he didn't begin his search warrant he didn't begin his investigation until september two thousand and fifteen and so what we have here are a of reports that he's getting from somebody else where he has absolutely no personal knowledge or affiliation with it and so he's trying to bootstrap those reports into something that he's added later on into this search warrant affidavit and and because of that these portions of the affidavit where he asserts these facts they are not corroborated by his personal information and we need that corroboration so we know that this information is reliable because otherwise what keeps us from having someone else create a report for another officer to submit and support his search warrant affidavit we don't have any other way to keep these items from happening and that's why we need this personal corroboration because detective he's cockhead nothing that he personally observed throughout this entire search warrant affidavit and examples where courts have found that the search warrant affidavits were insufficient because the police officers didn't have personal information was it's an i'm published case but it was in united states versus brown it came from this case came from this court and that the information in that search warrant affidavit included was incidents about and the rest that happened earlier that week it was the day before and they gave all kinds of information about that incident but they left out key information regarding what happened they said that he was under investigation but they didn't explain in the investigation about what was observed during that investigation and that's what we have here we don't have any explanations of what was actually observed seen or heard in this investigation and one thing that we have that happen in this case is we have assertions in the affidavit that says that into summer and september fifteenth and december two thousand and fifteen there was surveillance conducted over mr mr herrera but during this during the suppression hearing it came out that detective heath talk never actually heard anything saw anything everything was just a presumption and everything that he's talking about is based on some information that he received from another person these  unsubstantiated hearsay statements that he cannot corroborate based on his own personal observations and that's the big problem with this search warrant affidavit and i know there's a lot of precedent where search warrant affidavits that may have more or less words and the affidavit that we have are not are not called bare bones affidavits we've got satterwhite we've got pope and we've got mckeever who each of these cases the courts have declined to have a finding of a bare bones affidavit but there is distinctions for each one of those reasons why those affidavits want bare bones affidavits in satterwhite for example the a fan had personal knowledge of facts that were alleged in the affidavit to take detective his cock didn't have that personal information what about cases addressed in the good faith exception where the good faith exception when  we're talking about application of the good faith exception we still have to consider the bare bones after the application of the bare bones affidavit concept because that you can't have one without the other the cases seem to be fairly strongly against your position with respect i agree your honor that we don't have a lot of precedent and to be quite honest it seems like the good faith exception completely swallows the role to the fourth amendment when it comes to search for searches and seizures we can't there is not a lot of case law and i will concede that point and the reason why we don't have a lot of is because a good faith exception pretty much gives almost everything full leeway if we can have one fact and then they say  was i think seventy four months old and in when they found that that was not a bare bones affidavit it was because that police officer was actually involved in the illegal activity of the conducted drug by as well as had continued the investigation throughout his application for the search warrant affidavit that's what we don't have that here and so these distinctions are what's different for mr herrera's case because we have someone who has never been involved and till very long after all this other information has been obtained by these unknown sources whose reliability cannot be confirmed and some other factors in these cases involving holdings where bare bones where where the courts have declined to find barry bonds affidavits there have been individuals who've made statements interest and they've admitted to engaging in criminal activity and they've used that information to use as a basis for crediting that hearsay we don't have a basis like that to credit the hearsay here in mr herrera's case listed at any point in time in those applications and our records been supplemented to include those applications for your review and so we have all of this information but we don't have any actual facts to support the personal knowledge requirement the corroboration requirement for issuing the search warrant affidavit in this case and with all respect to the court i've got fifteen seconds left that i'll give back that's why don't you save time for a bo is not bare bones that has wholly conclusory statements in the nature of something like you know i have reason to believe that there are drugs in this affidavit is in the record it's pretty clearly not a bare bones affidavit i'll just mention few things on the issue of what did the actual detective who who swore at the affidavit do that affidavit states on page one o seven of the record that surveillance had been conducted by the a fiancee in other words by the detective himself he was conducting surveillance along with others at the hearing there were some questions from defense counsel about whether the detective had actually physically seen you know drugs themselves during the course of the surveillance and he said no good he said we have seen what we believe to be narcotics transactions in other words you wouldn't you wouldn't expect that the drugs would be actually you know physically seen on the street but they'd seen other things that fit the profile of narcotics transactions you know you can imagine things being concealed in packages for example the rest of the affidavit you know that there's two confidential informants both informants there was a basis for credit in their statements one informant had personally  seen mr where in possession of the methamphetamine and identified him as a dealer the second informant had made a similar statement both informants the affidavit explained that both informants had provided information that it proved to be reliable so considering that's a tally of the circumstances here it certainly was not error for the district court to conclude that the good faith exception applied it also you know would have would not air for the district court to conclude that even if the good faith exception didn't apply there was at least a substantial basis in this affidavit for the state district judge who issued the warrant to conclude that probable cause existed so we ask that the court affirm the denial of the motion to suppress i'll briefly mention the void are issue you know this is a case where one of the charges was a felon in possession count so the jury was told and was going to be told that you know the the defendant mr where i had a prior conviction and you know with the range of imprisonment imprisonment of greater than a year now this is the statement that was made during void dire by the parole officer was simply that mr where was under his supervision he knew mr where he was under supervision there was no further details provided about what offense had been committed why he you know what specific crime had been committed it was simply an explanation that he was under my supervision i know and on the basis of that the district judge immediately excused the parole officer now in the reply brief mr who argues that this the statement and the board are somehow deprived  where of having the government prove the existence of this prior felony and that's the record just doesn't support that on page four twenty six of the record there's a stipulation that mr where i had executed prior to the start of the trial had already stipulated to the existence of this felony so the felony was already stipulated to there was no issue about the whether the government was going to have to prove the existence of this felony or not and in fact if the stipulation had  gone away or had not existed mr where i likely would have been on a much worse situation because the government then could have put on the details of his prior felony convictions which included two prior convictions under state law for you know drug offenses so i don't i don't think it can be claimed that mr where was in any way prejudiced by the fact that you know he had stipulated to this offense and so the court can resolve the border issue i think easily just on the basis that this is  possession case the jury already was going to find out about this anyway and the record just doesn't support that there was any prejudice the district court immediately excused the juror who knew mr were later when some of the other jurors said that they might have been affected there but some of the other potential jurors said that they might have been affected by the statement the district court engaged in a short colloquy with them where the district court reiterated the you know the presumption of innocence  and asked if these members you know still would not be able to be fair and impartial they said they would not be and he said ok at that point even though its claim that this had some sort of coercive effect on the panel or somehow caused the panel to shut down the record doesn't reflect you know doesn't support that either because immediately after the district court made those remarks a third panel member spoke up and said i also believe that i would you know could not be fair so it's clear that the district court didn't dissuade anybody from voicing their opinions that like to clarify we make some reference in the in the brief to sort of what happened during this ward are and the record shows it was a very lively panel and they were consistently voicing their opinions throughout the process after the parole officer first identified that he knew the defendant there are several pages of transcripts or other panel members are talking about how you know they don't necessarily agree with federal gun laws or they don't necessarily agree with federal law enforcement activities it was not a shot panel at all after the district court then had his call colloquy with the panel members who said they might have been influenced by the parole officer statement some additional panel members and one of them said i also you know would be influenced by this but then other panel members talked about how do you know people that they knew were family members that had used drugs that they felt that they couldn't share because of that so there was throughout the whole process the panel was more than willing to sort of share its its ideas and volunteer information including information you know that basically was that they couldn't be fair so there's just the record doesn't support that this panel is in any  a shut down by the district court and again though it was a felon in possession case there's absolutely no basis for concluding that prejudice can be shown finally on the same scene issue i think you know that there was no  objection to this career offender status there was a sort of blanket objection that said he doesn't have the right number of convictions but it didn't even differentiate between controlled substance convictions and crimes of violence and he had one crime of violence conviction in contrast in the hinkle case there was a more specific objection about whether the texas statute you know does not meet the test because it criminalizes an offer to sell there was there was opinions it's absolutely true that those texas state court drug convictions do not qualify because as controlled substance offenses but as noted in the brief because the defendant is subject to a life term on it on a separate count there is no cap twelve he's subject to the life sentence regardless so we don't think there's any effect on substantial rights and certainly even if the court were to find that you know point error does not apply you know that there's no need for a recent incident at this time as we' it's only our answer to our questions if we lose on the first two issues candidly your honor there's a couple of things that i would like to address that mr saltus did stay say in his argument in question is what other things we're seeing we don't know because it was not described in the affidavit he was involved in the investigation at some point in september two thousand and fifteen and we don't know what he saw what he heard what he saw or anything of that nature because he didn't have any personal observations to corroborate any of the statements that he raised well there all  not have a good faith belief the reason why detective he's got did not have a good faith belief in the circumstances because he knew that he was providing a search warrant affidavit where he had no personal where he got his information he didn't report so i have personal knowledge nobody should have now known that he needs more than being being able to rely on i'm corroborated he has a job to corroborate the information and he gets what your best cases says that united states versus barrington eight zero six f second five twenty nine fifth circuit nine hundred eighty six judge ruled really actually wrote that opinion that cases said that it was a bare bones affidavit because even though that there was no good faith exception appliable applicable in that case because the officer who wrote the affidavit is the same officer who executed the affidavit in regards to the other issues that are raised in our brief respect specifically to the second issue regarding  does anybody on the jury panel who knows mr hogg his co counsel or their case agent jamal floyd volunteered that he was jesse herrera's parole officer that was not responsive to anything and there was never an admonishment by the trial judge or anyone that they were that the jury needed to be instructed to disregard mr floyd's outburst that mr herrera was on parole at the time of the trial and so what is the importance of this this is not some sort of harmless error it doesn't matter because they were going to find out whether he was a criminal or not the issue here is this affected their the entire round of the trial the jury was left an impression that impression was evident through the questions that were raised during voir dire by defense counsel and there was no way for that impression to be released over moved absent striking the entire panel and