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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

Before The Honorable Vince Chhabria, Judge 

UNITED STATES OF AMERICA, ) 

 ) 

 Plaintiff, ) 

 ) 

 VS. ) NO. CR 16-00477 VC

 ) 

DONNELL ARTIS, THURMAN GAITHER )

III, ANTONIO OLIVER, STERLING )

HOLMES, and CHANTA HOPKINS also )

known as Askari Aquil Mohammed, )

 ) 

 Defendants. )

_______________________________) 

 San Francisco, California 

 Wednesday, November 29, 2017 

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For Plaintiff: 

 BRIAN J. STRETCH 

 United States Attorney 

 450 Golden Gate Avenue 

 San Francisco, California 94102 

 BY: RANDALL W.C. LEONARD

 ASSISTANT UNITED STATES ATTORNEY

For Defendant Donnell Artis: 

 LAW OFFICE OF JOHN J. JORDAN 

 601 Montgomery Street - Suite 850 

 San Francisco, California 94111 

 BY: JOHN J. JORDAN

 ATTORNEY AT LAW

 

(APPEARANCES CONTINUED ON FOLLOWING PAGE) 

REPORTED BY: Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR 

 Official Reporter 

Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 1 of 47
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APPEARANCES: (CONTINUED) 

For Defendant Thurman Gaither III: 

 LAW OFFICE OF ALAN A. DRESSLER 

 601 Montgomery Street - Suite 850 

 San Francisco, California 94111 

 BY: ALAN A. DRESSLER

 ATTORNEY AT LAW

For Defendant Sterling Holmes: 

 BORO LAW FIRM 

 345 Franklin Street 

 San Francisco, California 94102 

 BY: ALBERT J. BORO JR. 

 ATTORNEY AT LAW

For Antonio Oliver: 

 PETER L. ARIAN LAW OFFICES 

 407 San Anselmo Avenue - Suite 201 

 San Anselmo, California 94960 

 BY: PETER L. ARIAN 

 ATTORNEY AT LAW

For Defendant Chanta Hopkins also known as Askari Aquil 

Mohammed: 

 LAW OFFICES OF STEVEN F. GRUEL 

 315 Montgomery Street - 9th Floor 

 San Francisco, California 94104 

 BY: STEVEN F. GRUEL 

 ATTORNEY AT LAW

 LAW OFFICES OF JASON T. CAMPBELL 

 300 Montgomery Street - Suite 660 

 San Francisco, California 94104 

 BY: JASON T. CAMPBELL 

 ATTORNEY AT LAW

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Wednesday - November 29, 2017 10:06 a.m.

P R O C E E D I N G S

---000---

THE CLERK: Calling Case Number 16-cr-00477, U.S.A.

versus Donnell Artis, U.S.A. versus Thurman Gaither, U.S.A.

versus Sterling Holmes, U.S.A. versus Antonio Oliver, and

U.S.A. versus Chanta Hopkins.

Counsel, please state your appearances for the record.

MR. LEONARD: Good morning, Your Honor. Randy Leonard

for the United States.

THE COURT: Good morning.

MR. JORDAN: Good morning, Your Honor. John Jordan on

behalf of my client Donnell Artis, who's present in court in

the Marshal's custody in the top row to the end.

THE COURT: Good morning, Mr. Artis.

MR. ARIAN: Good morning, Your Honor. Peter Arian on

behalf of Antonio Oliver. He's present in court. He's in

custody. He's in the lower row on the end.

THE COURT: Hello, Mr. Oliver.

MR. DRESSLER: Good morning, Your Honor. Alan

Dressler on behalf of Thurman Gaither. Dena Young is out ill,

and I think the Court is aware of that.

THE COURT: Yes. Thank you.

MR. GRUEL: Your Honor, good morning. Steven Gruel on

behalf of Mr. Chanta Hopkins, who's in the back row on the

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left. Also with me is my colleague, who's assisted in this

case, Jason Campbell, Your Honor.

THE COURT: Good morning.

MR. CAMPBELL: Good morning, Your Honor.

MR. BORO: And good morning, Your Honor. Albert Boro

on behalf of Defendant Sterling Holmes. Mr. Holmes is out of

custody. He should be here but he's not here yet, Your Honor.

THE COURT: Okay. Do you want to waive his appearance

for these proceedings?

MR. BORO: I do, Your Honor.

THE COURT: Any objection from the Government?

MR. LEONARD: No objection.

THE COURT: Okay. That's fine.

MR. BORO: Thank you.

THE COURT: I guess maybe let's start by talking about

Mr. Artis' motion to suppress, and let me start with the

Government.

I mean, I think the Government has some problems in this

case, continues to have some problems in this case. How many

illegal searches were there in this case? I mean, there was at

least one illegal search; right? And that was the search of

Mr. Artis' girlfriend's apartment. It seems like you don't --

you don't dispute that that was an illegal search.

MR. LEONARD: Actually, Your Honor, I do.

THE COURT: Why didn't you argue that the search was

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legal in your papers?

MR. LEONARD: The reason why I didn't rely on it is

because I cannot be clear because the agents cannot

specifically recall whether they saw an uneven stack of credit

cards before or after they had been moved.

THE COURT: But they shouldn't have entered that

apartment in the first place.

MR. LEONARD: I disagree, Your Honor. They had an

arrest warrant.

THE COURT: What's your authority for the proposition

that they could enter the apartment?

MR. LEONARD: With an arrest warrant for Mr. Artis and

a belief that he is there -- 

THE COURT: Do you have any authority? 

MR. LEONARD: That's Payton -- Payton, Steagald,

Underwood. These cases stand for the proposition that if you

have an arrest warrant for somebody and you have a reason to

believe that they're in a location, that arrest warrant alone

is enough to go into that residence to execute the arrest

warrant.

So I have no problem with them going into that apartment

to execute the arrest warrant. So we don't -- I don't even

think we need to talk about protective sweep or security sweep

or the door cracking open. They had an arrest warrant for

Mr. Artis and a reason to believe that he was there, a belief

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that was, frankly, by seeing the credit cards there was

substantiated.

I mean, so --

THE COURT: So if you have a warrant to arrest

somebody but not a warrant to -- this is an issue that I've

not -- I mean, I just assumed you were -- frankly, I assumed

you were conceding that this search was illegal because nowhere

in the 50 briefs that you filed did you argue that the search

was legal.

MR. LEONARD: I'm conceding, Your Honor, because I

cannot establish the plain view doctrine in that case with

respect to the cards because --

THE COURT: Okay. So you're saying if you have a

warrant to arrest somebody, that authorizes you to go into

their home and get them even if you don't have a warrant to

search their home?

MR. LEONARD: Absolutely.

THE COURT: Okay.

MR. LEONARD: If you have an arrest warrant and a

reason to believe that that person lives at that house or is

there at that house. And it started with --

THE COURT: Then why is the declaration -- why is the

agent -- was it Carlson? Stonie Carlson; right?

MR. LEONARD: That's right.

THE COURT: Why does Stonie Carlson's affidavit and

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declaration talk about how he went there and the door was

unlocked or open and he became worried about safety and so he

needed -- felt the need to do a protective sweep?

MR. LEONARD: He wanted full disclosure, and that's --

as soon as he knocked on the door and felt the door cracked

open --

THE COURT: I mean, why didn't he say, "I went in

there to look and see if Mr. Artis was there because I had a

warrant for his arrest"?

MR. LEONARD: Well, that is why they went to the

apartment, and I think he does make that clear. They went to

the apartment to execute the arrest warrant. Then when they

knocked on the door, the door cracked open, he thought that was

very odd and his interest immediately changed. His interest

changed to, "Well, this is a high-crime area. I'm going after

a criminal suspect. The door's cracked. The door came open as

I knocked. This is weird." And so his posture immediately

changed into a security sweep. That is not to say that it's

unlawful to go in there.

THE COURT: Okay. But you don't contend that somebody

can go into an apartment just because it's a high-crime area

and the door is partially open?

MR. LEONARD: No. I mean --

THE COURT: You know that's not permitted. You think

that the reason it was okay to go in the apartment was because

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he had a warrant for Mr. Artis' arrest?

MR. LEONARD: Yes.

THE COURT: Okay.

MR. LEONARD: I think that is the strongest basis, and

I'm confident on the law at that point. And it's two prong:

You have an arrest warrant and a reason to believe that the

person is there.

THE COURT: Okay. And so -- I mean, we can get back

to that if we need to, but I'm not sure if we do because you

are not relying on any of the information gathered by the

officers during the search of that apartment to justify the

affidavit for the arrest that took place at -- was it Willie

Brown's? -- not the arrest, the warrant for the phone -- to

search the phone that was taken at -- was it Willie Brown's

liquor store?

MR. LEONARD: Outside of Willie Brown's liquor store,

yes, Your Honor.

THE COURT: Okay.

MR. LEONARD: I just want to be clear, though,

Your Honor. I am -- you're right, I am not relying on that,

but I'm not doing it -- I'm not not relying on it because it

was an unlawful search. I don't believe it was. I'm not

relying on it because I can't establish through my

interviews -- through the declarations and my interviews with

the agents that they knew precisely that the cards were stacked

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 8 of 47
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unevenly such that they were in plain view before or after or

if someone had manipulated them.

THE COURT: Okay. What about the August 20th, 2015,

warrantless search of the apartment on Jefferson Street in

Oakland? Was that an illegal search?

MR. LEONARD: I don't -- I don't know, but I do know

this --

THE COURT: There's a stipulation.

MR. LEONARD: That's right.

THE COURT: The Government has stipulated --

MR. LEONARD: Yes.

THE COURT: -- to not using evidence from that search.

MR. LEONARD: Yes. I just don't want to say --

THE COURT: I assume that was an illegal search. I

assume the Government would not have stipulated to that if the

Government truly believed it was a legal search.

MR. LEONARD: Fair enough, Your Honor. I mean, that

is our approach.

THE COURT: Okay.

MR. LEONARD: I just don't want to say that I --

THE COURT: Who conducted that search?

MR. LEONARD: I'm sorry?

THE COURT: Who conducted that search? Did

Stonie Carlson conduct that search as well?

MR. LEONARD: No, Your Honor.

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THE COURT: Who conducted that search?

MR. LEONARD: That search was initiated by a bail

bondsman who then called Oakland PD and Oakland police officers

did that search.

THE COURT: Okay.

Okay. Now, turning to the search of the cell phone, let

me start -- I mean, I think there are -- you have two potential

problems. One is that -- one is this issue of the federal

agent getting a warrant from the state court judge, the state

magistrate. And I don't think that you have adequately

addressed that issue in your papers because you point to

federal law authority for a federal agent to serve as a state

peace officer and perform the functions of a state peace

officer; and that's fine, but what you don't point to is any

state law authority for the state court judge to issue a

warrant to a federal officer as existed in South Dakota in that

South Dakota case.

I wouldn't be surprised if there were California -- if the

law in California permitted state court judges to issue

warrants to federal officers who are part of some sort of joint

task force, joint law enforcement task force. That wouldn't

surprise me, but you haven't pointed to it.

So do you have -- and I assume that if there is no state

law authority for a state court judge to issue a warrant to a

federal officer, then it was a bad warrant. So do you have

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any -- can you point me to any source of state law making clear

that a state court judge in California has authority to issue a

warrant to a federal officer?

MR. LEONARD: Not anything other than I've already

presented in the papers, and that is the state law that

authorizes a state judge to issue a search warrant to a sheriff

and the --

THE COURT: Yeah.

MR. LEONARD: -- the Marshal's authority to --

THE COURT: Well, where -- what's the definition -- I

mean, what's the state law definition of a "sheriff"?

MR. LEONARD: That, I don't -- in California, I don't

know.

THE COURT: Then why is that helpful? I don't

understand why it's helpful that there -- to you -- that there

is a state statute that authorizes state court judges to issue

warrants to sheriffs.

MR. LEONARD: I think it's because that Carlson, as

part of this joint State-Federal Fugitive Task Force, takes the

position as a sheriff for purposes of getting this warrant.

THE COURT: Right, but doesn't there need to be some

source of California law saying that Carlson is deemed a

sheriff under California law?

MR. LEONARD: I don't. I think federal law and his

position as part of the State Fugitive Task Force --

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THE COURT: Federal law makes him a sheriff under

California law?

MR. LEONARD: Well, I mean --

THE COURT: So if federal law said that all French

poodles are sheriffs under California law, would that be okay?

MR. LEONARD: Of course not, Your Honor.

THE COURT: There would have to be California law

saying, "Yes, we agree that French poodles are sheriffs";

right?

MR. LEONARD: Certainly.

THE COURT: Otherwise French poodles would not be a

sheriff under California law; right?

MR. LEONARD: That's right.

THE COURT: So it seems to me that a federal law that

authorizes a federal officer to serve as a quasi state sheriff

is sufficient insofar as it goes to establish that when the

federal officer is doing that, the federal officer is not

violating federal law, but it does not establish that the

federal officer is authorized under state law to serve as a

peace officer.

Like I said, I wouldn't be surprised if there were some

California law out there authorizing a federal officer to serve

as a California peace officer, but I think unless you can show

me that, it must be a bad warrant.

MR. LEONARD: I'm sorry?

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THE COURT: I don't understand how it would not be a

bad warrant if you could not establish that under California

law, Stonie Carlson was authorized to act as a peace officer.

MR. LEONARD: Well, I just also add, Your Honor, that

in the warrant affidavits, Agent Carlson does specify that he

is assisting state law enforcement officers and he is a part of

this team that does include --

THE COURT: Yes, but if a French poodle submitted an

affidavit to a state court judge saying, "I'm part of a

State-Federal Law Enforcement Task Force assisting state

officers," and the state court judge issued the French poodle a

warrant, that would be a bad warrant; right?

MR. LEONARD: Certainly.

THE COURT: Okay. And the way -- unless there was a

state law that said French poodles can be peace officers under

California law; right?

MR. LEONARD: That's right.

THE COURT: Okay. So why does it matter that

Stonie Carlson said in his affidavit that he was assisting

state officers?

MR. LEONARD: Well, I think if -- with that language,

it demonstrates to the magistrate that he is a part of this

state team, which presumably includes state officers are on the

team. He's just the person standing up there delivering the

affidavit, but there are state officers on this team. So he's

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just one representative of this state and federal team of which

there are a number of state peace officers that would qualify.

THE COURT: But it sort of begs the question. I mean,

let me ask you: Have you had a chance to review carefully to

see if there is some source of California law authorizing

somebody like Stonie Carlson to get warrants from -- deeming

somebody like Stonie Carlson to be a peace officer or

authorizing somebody like Stonie Carlson to get a warrant from

a state court judge?

MR. LEONARD: No. I mean, clearly not as deeply as I

should. I -- so, no.

THE COURT: It seems to me that you lose if you don't

have that. I mean, explain to me why you don't lose if you

don't have that. I just don't understand. I mean, if this

agent was not authorized under California law to get a warrant

from a state court judge or, to put it another way, if the

state court judge was not authorized to issue the warrant to

Stonie Carlson, then that's the end of the matter; right? Then

how would you not lose if that were the case?

MR. LEONARD: If that were the case, Your Honor, I

would say that is a highly technical question a judge ought to

catch, not the affiant; right? So that would be an application

of the good faith exception, because the agent went in good

faith and delivered the facts and sat there and waited while

the judge considered it, and then took the warrant and executed

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it.

This is a tricky -- a question. It's not one that the

affiant should know. It's one that the judge should know.

THE COURT: Well, first things first. Let's figure

out the answer to the state law question. I mean, what if

there were a provision out there that said nobody -- let's

just -- I'm making this up. I haven't had a chance to research

this myself either so I'm making this up, but let's say there

was a statute, a California statute, which said a state judge

may not issue a warrant to anybody except actual members of a

state or local Police Department, actual employees of a state

or local Police Department. If there were a statute that said

that, then clearly the state court judge was not authorized to

issue the warrant to Stonie Carlson and it would be a bad

warrant; right? You're saying even in that scenario --

MR. LEONARD: I don't think we can --

THE COURT: -- the good faith exception would apply?

MR. LEONARD: I don't think we can ever divorce the

analysis from the good faith exception if we're talking about a

scenario when agents are relying on the warrant itself. I

mean, I think that's what the good faith exception was borne

out of, agents relying on a search warrant that turned out to

be insufficient or invalid. So I think the analyses on that

question have to be together.

THE COURT: Okay. All right. So this is -- so that's

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one problem that we have.

Do you have any -- before we turn to whether there was

probable cause, assuming it's not a bad warrant, a bad warrant

in the sense that we've been discussing, do you --

MR. JORDAN: If I might, Your Honor.

THE COURT: Go ahead.

MR. JORDAN: First, just briefly going back to the

very first point, I strongly disagree. Payton, I believe, does

require a search warrant to go into a residence to arrest

somebody even if you have a probation warrant from a California

judge for a violation, otherwise Payton is completely

meaningless. What's Payton stand for?

THE COURT: I haven't read Payton in anticipation of

this hearing, so you'll have to remind me what Payton says.

MR. JORDAN: Well, Your Honor, Payton, a New York

case, involved police officers looking for a defendant -- I was

in New York at the time, and the word was they were coming from

a softball game and they decided to go to Mr. Payton's

residence -- or grandmother's residence perhaps -- to see if he

was there without a search warrant to go into the house. And

the Supreme Court said, no, houses are important. A residence

is the most important protection under the Constitution.

Without a search warrant to go into the house, the arrest is

invalid.

I mean, I thought I briefed it. There was no real

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response from the Government making this argument that arrest

warrant alone is -- so if you want, I can give you some further

clarification.

THE COURT: Yeah. I'm a little surprised to hear that

if you have, you know, an arrest warrant for somebody but not a

search warrant, you can go into their house to arrest them; but

I -- that's not an issue I looked at in anticipation of this

hearing because I thought the Government was conceding that it

was a bad search.

MR. JORDAN: Exactly, Your Honor. If Your Honor does

have questions, I'd be happy to submit further authority on

that.

Going to the second point, the point you just raised, I

believe there is a California statute that tells a judge who he

can give a search warrant to. It's in my papers. California

has a statutory scheme under Penal Code 1529 at 830.1.

THE COURT: Wait. Hold on.

(Pause in proceedings.) 

THE COURT: Okay.

MR. JORDAN: Those statutes define what a peace

officer is and also define what a judge -- how a judge can

issue a warrant. It has to be to a California peace officer.

This question of --

THE COURT: Well, but there -- I mean, I can imagine

in a number of places authority being created. I mean, these

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 17 of 47
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task forces, for example -- right? -- there are lots of these

task forces, these joint federal/state task forces --

MR. JORDAN: Absolutely.

THE COURT: -- and I assume there are documents, you

know, like contractual documents or MOUs, or something like

that, establishing these task forces; and I wouldn't be

surprised if in these MOUs or other documents if it was

provided that, you know, the federal members of the task force

are considered peace officers for purposes of their task force

activities.

MR. JORDAN: Well, first, this gets into, I think, an

important constitutional issue of state-versus-federal criminal

jurisdiction. There is no federal police force. Those

officers are limited under the commerce clause to what criminal

statutes they can enforce.

I would be --

THE COURT: No, there -- 

MR. JORDAN: There might be a large difference between

North Dakota and California. California is extremely reluctant

these days to cooperate with federal authorities, for example,

on immigration issues.

THE COURT: Yeah, but this isn't an immigration issue

and notwithstanding California's reluctance to cooperate on

immigration issues, there's tons of cooperation all the time

between state and federal law enforcement outside the context

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 18 of 47
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of immigration.

MR. JORDAN: That's true, but in my experience, in

that joint cooperation when warrants are sought, state officers

go to state judges for the state warrants and federal officers

go to the U.S. magistrate for the federal warrants.

I did research this. I'm not going to say I read every

case in the country. I could not find any case that upheld a

federal agent going in this circumstance to a state judge for a

state warrant.

As counsel said, the agent did say in his affidavit, "I'd

like this to be for any federal, state, or local officer," but

the warrant that was issued does not parrot that language.

That authority was not given by the judge. That warrant, which

Your Honor has copies of, says "to any California peace

officer." So clearly --

THE COURT: Right. And the question is whether

Agent Carlson was authorized to serve as -- was serving as a

California peace officer, you know, when he was doing this. I

think if he wasn't, then I think the warrant has to be bad.

MR. JORDAN: I agree, Your Honor. I did look into the

issue as best I could. I found no authority that would support

the Government's case. If I had, I would have had to show it

to the Court and to the other side. Eventually it would be

found, but I just didn't find it.

I'll rely on the case I cited in my surreply, the

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District Court case that says that sheriff's statute, that

allows marshals to enforce federal law, not state law. And the

warrant that was sought here was for state law violations. It

was a California state warrant --

THE COURT: Yeah.

MR. JORDAN: -- for violation of state law.

THE COURT: Yeah. I'm not certain I agree with that.

I mean, I would think -- you know, there's this -- I can't

remember if you-all cited this or if my law clerk just found

it, but there is this Office of Legal Counsel opinion -- have

you seen that?

MR. JORDAN: No, Your Honor, I haven't.

THE COURT: -- from 1995, and it directly addresses

this question and it's 1995 Westlaw 944018, and it directly

addresses this question and says that -- interprets these

statutes as authorizing a federal officer who is serving as a

special deputy marshal, or whatever it's called for purposes of

these joint task forces, to arrest -- to -- let me see, let me

make sure I get it right here.

(Pause in proceedings.) 

THE COURT: Yeah, to effectuate arrests of fugitives

for violations of state law.

MR. JORDAN: I would have no problem with that,

Your Honor, but this is a search warrant.

THE COURT: Well, I don't know how much of a stretch

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it is to say that if they can effectuate an arrest of a

fugitive for violations of state law, why can't they

participate in the acquisition of a search warrant?

MR. JORDAN: They could participate in the execution

of a search warrant, but I don't think the FBI agent can be the

affiant, can be the one applying for it.

THE COURT: Why?

MR. JORDAN: Because California law says --

THE COURT: California law.

MR. JORDAN: Yes.

THE COURT: I thought you were bouncing back to

federal law and saying that the federal -- because the

District Court opinion that you were mentioning took the

position that as a matter of federal law, a federal officer

cannot do this because the federal officer is limited to

enforcing federal law.

And what I'm saying is I don't think that's right as a

matter of federal law. I think probably as a matter of federal

law, a federal officer in Agent Carlson's position is

authorized to effectuate an arrest for violation of state law,

get a warrant for violation of state law; but it kind of begs

the question, I think, because I think that can only be true --

he can only do that -- I mean, he may be authorized under

federal law to do it, but he can only do it if state law

authorizes him to do it as well.

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MR. JORDAN: I understand, Your Honor. I still draw a

distinction between authorized to participate and authorized to

be the affiant, but I'll leave it -- submit it on that point.

THE COURT: Okay. Why? Why is the -- I know you want

to leave it at that point, but why does that distinction

matter --

MR. JORDAN: Well --

THE COURT: -- from a federal law standpoint?

MR. JORDAN: Well, a law enforcement agent on the

street who has probable cause to seize somebody who's committed

a crime has authority under that statute to arrest him, but

that's much different from executing a search warrant where a

judge has to authorize it and you have to be the authorized --

you have to be an authorized person to do it. To me that seems

to get into this federalist argument.

THE COURT: The effect of these federal statutes is to

authorize these federal officers to serve as state law

enforcement officers --

MR. JORDAN: See, I disagree. I think that --

THE COURT: -- authorizing them under federal law to

do that if it's okay with the state.

MR. JORDAN: I guess, Your Honor, but -- and my point

is, of course, it's not okay with California in these

circumstances.

THE COURT: I mean, I think that's the big problem

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here.

MR. JORDAN: Exactly.

THE COURT: Okay. So that's one -- I think that's one

problem we have and one kind of unanswered question that we

have at this point.

The next problem is Agent Carlson's affidavit. I mean,

let's look at the affidavit. What do we have in the affidavit?

We have the information about the Ellis Street search, which

everybody agrees we should not consider. So cross that out.

It seems to me the only two other things we have that

could potentially establish probable cause to search the phone

are, one, that Artis was a fugitive and he had outstanding

warrants; and, two, is this very cursory statement about

information received from a confidential informant with no

information explaining why we should believe what the

confidential informant says.

So on the first point, I mean, I guess there's some reason

to doubt at this point whether, in fact, there were outstanding

warrants for Mr. Artis; right?

I mean, in the affidavit Carlson said there were

outstanding warrants; Artis says that he does not think that

there were; and then in sort of a weird presentation that is

not -- you know, it's through lawyer argument but not actual

evidence, Artis says that at least two and maybe three of the

warrants were not outstanding anymore, that he pled guilty to

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those offenses.

So, I mean, don't we have -- given the state of the

record, don't we at least have some fairly significant reason

to doubt whether there actually were outstanding warrants for

Artis at that point?

MR. LEONARD: I don't know, Your Honor. I'm not sure

what you're referring to when you say that those warrants

weren't outstanding anymore.

THE COURT: Well, Artis says in his declaration that

he didn't believe he had any outstanding warrants, and Artis

says in his brief through his lawyer -- and it would have been

much better had they submitted actual evidence of this as

opposed to just lawyer argument -- but he says in his brief

that he had pled guilty to two of the three offenses that

Carlson claims there was an outstanding warrant for --

MR. LEONARD: Okay. Well, I assume --

THE COURT: -- and that the third may have been

resolved, although they use some vague language about that in

their brief.

So, you know, don't we have -- it's already -- the

affidavit is already quite thin when you excise the

Ellis Street stuff, and then we have this reason to question

whether there really were outstanding warrants.

MR. LEONARD: As you pointed out, Your Honor, I think

that's argument that counsel submitted. So I don't know that

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we can doubt on that record that there are outstanding -- that

there were not, excuse me, outstanding warrants.

I would add, too, that it's not just the outstanding

warrants. It's the nature of at least one of the offenses;

right? Because that ties to -- that ties to the suspected

criminal activity for this warrant.

So it's the outstanding warrants and it's the nature of

the offenses, and I think -- or at least one of the offenses,

and I think that's a critical piece as well.

THE COURT: Okay. If there were not outstanding

warrants in particular for the offense, what was the offense?

Was it identity theft?

MR. LEONARD: One of the offenses was identity theft,

yes.

THE COURT: Right. If there were not outstanding

warrants, if that was wrong, clearly no probable cause; right?

Because all you'd be left with, then, was this very cursory

description of what a confidential informant said.

MR. LEONARD: Yeah. I think the outstanding warrants

are critical, yes.

THE COURT: Okay. So the outstanding warrants are

critical, and your position is that on this record there's no

basis to doubt that there were, in fact, outstanding warrants.

MR. LEONARD: That's right, Your Honor.

THE COURT: Okay. So let me ask you: Is there -- I

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mean, why did this just come in the form of lawyer argument?

Why don't we have any evidence? You have these assertions

about -- you attempt to cast doubt on whether there were

outstanding warrants, but why don't we have any evidence on

that, or do we have evidence that I missed?

MR. JORDAN: That's exactly the problem here. The

problem is, and it wasn't this Assistant U.S. Attorney, but I

have been asking the Government for these warrants and I

haven't received any. I've called the Clerk's Office and they

say, yes, you know, these cases were resolved, but the

Government has to bring forth --

THE COURT: Which Clerk's Office?

MR. JORDAN: San Francisco Superior Court.

THE COURT: Okay.

MR. JORDAN: Apparently there was a probation matter;

but, again, I don't have the warrants.

THE COURT: There was a what?

MR. JORDAN: He was on probation, so there could be an

issue whether there was a probation warrant, but I have asked

for them. And I understand --

THE COURT: You mean a warrant on a probation

violation?

MR. JORDAN: For a probation violation, which is

completely different than what's stated in the warrant, in the

search warrant. 

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THE COURT: Right. 

MR. JORDAN: In the search warrant.

THE COURT: Right.

MR. JORDAN: So it's hard to not give you a warrant if

it doesn't exist. I don't have it. I have asked prior

counsel. I understand she had a health issue and she left in

the middle of this, and the new assistant came in and we have

gotten some discovery, including a new search warrant for my

client, which we'll talk about in a bit, but I never received

copies of any warrants.

It's the Government who's relying on these warrants to

establish the probable cause in the search warrant. I think

it's their responsibility to -- if Stonie --

THE COURT: Carlson.

MR. JORDAN: -- Carlson had these warrants, then he

should have them, and there should be no problem in producing

them. 

THE COURT: Well, I mean, all this makes me wonder if

we really do need a Franks hearing. And, you know, it makes --

I mean, and one of the issues to explore at the Franks hearing

is what was your basis for believing that there were

outstanding warrants, you know; and, you know, perhaps also

what was your basis for believing that you had authority to get

a warrant in the first place to search the phone from a state

court judge.

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MR. JORDAN: That would be more of a Franks/Leon

hearing, I suppose, for that second point, but I agree.

THE COURT: Yeah. Yeah. I think -- okay.

MR. LEONARD: Your Honor, may I be heard on one last

point?

THE COURT: Sure.

MR. LEONARD: I think there is an overarching point

that we're overlooking here, and that is the defendants' status

as fugitives. Now, for purposes of this argument, I'm going to

assume that, indeed, they were fugitives at the time.

THE COURT: No, and I think you're right that -- I

think what I would say is that even if you take away the

Ellis Street -- the information from the Ellis Street search

and you look at the affidavit and you say, "Okay, there were

these outstanding warrants," and if Mr. Artis truly was a

fugitive at the time -- okay? -- then you say, "All right,

there are these outstanding warrants. One of them was for

identity theft. We have information from a confidential

informant that is very sketchy but is corroborated by the

outstanding warrant," and you have the fact that this fugitive

ran, then I think the totality of that is enough to establish

probable cause to search the phone, probably both for evidence

of identity theft and to figure out, you know, where the

fugitive is.

MR. LEONARD: Where he is, right.

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THE COURT: So I think that's -- I tend to agree with

you about that, but I think the problem is that, you know,

everything from Agent Carlson is so sketchy. I mean, I'm,

frankly, not sure, you know -- you know, I think we need to

hear from Agent Carlson on the warrants and on everything else.

And, you know, I don't know if -- I don't know if -- we

might also hear from him a little more -- maybe without

disclosing the identity of the confidential informant we might

hear from him a little more about why the confidential

informant was reliable or a little more information about the

confidential informant. I'm not sure.

I guess what I would say about the confidential informant

is that if there were, in fact, outstanding warrants,

particularly for the identity theft, then I don't -- I think

that what is included in the affidavit about the statement from

the confidential informant, combined with the fact that there

were outstanding warrants and combined with the fact that Artis

ran, probably is enough. And so there doesn't need to be any

further exploration of, you know, the confidential informant.

That's my tentative inclination.

But I think we probably need to hear from Agent Carlson.

I think we need to have a Franks hearing, and you're free to

ask him -- you know, explore the issue of good faith too. I

mean, I'm sort of -- I will say that I'm skeptical that the

good faith exception could apply if this was a bad warrant, if

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 29 of 47
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he was never authorized under California law to get this

warrant. I'm skeptical of that but, you know, that's -- but I

haven't dived into that issue yet either.

MR. LEONARD: Okay. One last point, Your Honor.

Maybe this -- just before we commit to a Franks hearing, I

think we assumed a little too much about what is required in

terms of process, probable cause, in the pursuit of a fugitive.

And I think a case that the Ninth Circuit just decided two days

ago is illustrative on this point, and it's United States

versus Johnson. I don't know if the Court had a chance to read

it. I have copies here.

And it's about parolees, so I will start out of the gate

recognizing that parolees are probably in a different status

than a fugitive; but in United States versus Johnson, the panel

just two days ago said that parolees have a diminished

expectation of privacy like fugitives do, and that the police

officers in that case had no obligation whatsoever to seek a

search warrant to go inside that parolee's phone. So Riley

versus California didn't apply because of the diminished

expectation of privacy; right?

So parolees/fugitives, maybe a little bit different, but I

think we all agree that the reasonable expectation of privacy

that a fugitive should expect like a parolee is diminished,

and --

THE COURT: But why didn't you put in evidence that he

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 30 of 47
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was a fugitive? I mean, you know, they called that into

question in their papers. Like, it seems like it probably

would have been really easy for you to put in evidence, actual

hard evidence, that he was a fugitive and that there were

outstanding warrants.

MR. LEONARD: And that was my mistake, you're right,

Your Honor, and I accept responsibility for that.

THE COURT: So let's hear from Agent Carlson on all of

that.

MR. LEONARD: Okay.

THE COURT: Now, if this was a bad warrant and if the

evidence from it needs to be excluded, does that sort of set

off -- does that set off a chain of dominoes that basically

makes all this -- like, resolves -- requires the exclusion of

all the other evidence that's been discussed in all the other

filings?

MR. JORDAN: I would think so, Your Honor. That would

be our position.

One thing would be whether a subsequent search was

attenuated by a different affidavit; and as I mentioned, I only

just got a new search warrant I think this week, which I thank

the Government for but I hadn't got it beforehand. I haven't

really looked at it. So they may have an argument for that

information, which I believe was tracker information about

Mr. Artis' whereabouts, that that might be attenuated if that

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 31 of 47
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second warrant isn't tainted.

Without looking at the warrant closely, I can't really

tell Your Honor which way I would argue on that; but the other

evidence that directly flowed from going into the cell phone --

the pictures, the interviewing of the witnesses at the shooting

range, which they wouldn't know about if they didn't see the

photos -- all that would have to go, I would think.

THE COURT: By the way, I mean, it does seem to me,

given the circumstances, that we need to do something to make

sure that everything that could conceivably be related to these

motions is turned over to the Defense before we proceed with

the Franks hearing, even if the disclosure is earlier than the

Government is accustomed to making it.

So, you know, I don't know how to deal with that other

than maybe to say that the Government is ordered to produce,

you know, all information that could conceivably be relevant to

these motions to the Defense before the Franks hearing.

MR. JORDAN: So that, Your Honor, would basically go

to my motion to disclose the confidential informant and all the

other materials there in a separately filed motion.

THE COURT: Yeah, except that I think -- like I said,

I think that if the -- if there -- you know, the one issue --

or one of the issues I agree with Mr. Leonard on is that if

there is -- if Mr. Artis was, in fact, a fugitive, particularly

for identity theft, then I don't think we need to look further

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 32 of 47
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at the confidential informant because I think that the

information provided from the confidential informant in the

affidavit, though sparse, is fine because it's corroborated

basically.

MR. JORDAN: But that's a decision you won't make

until the Franks hearing, and so --

THE COURT: Right.

MR. JORDAN: -- I don't know if you want me to say

"Now I need the informant." I prefer to have it ahead of time

and do one Franks hearing and be prepared for that. That seems

to be the most efficient way. I mean --

THE COURT: It certainly seems to be efficient, but

the default is that you don't -- you know, you don't turn

over -- you don't disclose the identity of the confidential

informant at this stage unless it really needs to be disclosed.

And if, you know, the Franks hearing sort of definitively

establishes that Mr. Artis was a fugitive, particularly on the

identity theft count, that probably is the end of the matter.

So I don't know. I would sort of defer to the Government.

I'm sure the Government -- sort of I assume -- I think I know

what you're going to say but, I mean, if the Government thinks

that it would be more appropriate to, you know, and more

efficient to proceed by just having a hearing on everything,

including the confidential informant, we can do that; or, you

know, the Government can attempt to, you know, establish the

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 33 of 47
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validity of the warrant or the validity of the search first

before disclosing, you know, in an effort to avoid disclosing

the confidential informant.

MR. LEONARD: Well, Your Honor, can I propose this?

Because, tell me if I'm wrong, it sounds like what the Court is

really interested in is confirmation that indeed Mr. Artis was

a fugitive.

THE COURT: And confirmation that -- and I'm

interested in further exploring whether Carlson had authority

under California law to get this warrant from a state court

judge.

MR. LEONARD: I'm just thinking the first, we could

get you with documentation; the second, I don't know that

Carlson is going to know the answer to. I mean, it just seems

to me like a technical legal question. He's probably going to

say "I'm part of this" -- I don't know what he's going to say,

but --

THE COURT: I think there are enough irregularities

here and enough concerns about Agent Carlson's conduct that

there should be a Franks hearing and that they should be able

to explore these issues with him.

The only question that I have is whether we should allow

them to explore the confidential informant issue at the same

time or we should put that off and only do that if necessary.

So what's your view on that?

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MR. LEONARD: As you predicted, I would ask that we

not.

THE COURT: Okay. That's fine. That's fine.

So when are we going -- so when should we have the Franks

hearing?

MR. LEONARD: Well, with a lot of counsel and the

holidays, I suspect we're going to have to figure out our

schedules, Your Honor.

MR. JORDAN: I don't know, Your Honor. Would you like

us to confer and come back and file something with the Court

and do that? That might save some time here.

THE COURT: Sure. That would be fine.

MR. JORDAN: You're thinking something after the new

year? Perhaps January-February?

THE COURT: I don't care. What I want is -- I mean,

it could be December also, but what I want is the Government to

make absolutely sure that other than the identity of the

confidential informant, it has turned over everything to the

Defense that could be relevant to these motions. And I want

the Government -- and I want to order the Government to do that

even if it entails turning things over that it usually does not

turn over until the eve of trial.

So is that clear?

MR. LEONARD: It is perfectly clear, Your Honor.

THE COURT: And I want to make sure the Government has

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 35 of 47
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time to be very thorough about that and make sure it's

providing everything.

MR. LEONARD: And I think it would be appropriate for

us to all meet and confer after this hearing to tie up any

loose ends on that.

THE COURT: Okay.

MR. JORDAN: And I see Mr. Gruel to my left. I know

he's asked for --

MR. GRUEL: Stage left.

MR. LEONARD: -- a Franks hearing also, so I bet he

wants to join in about that --

MR. GRUEL: Your Honor --

MR. JORDAN: -- if this is a good time for that.

THE COURT: Sure.

MR. GRUEL: Your Honor, I've been listening to the

Court's inquiries and listening to my colleagues -- or

colleague, and I concur essentially with everything that he

says.

I'm assuming, Your Honor, that when you talk about the

Franks hearing, you're including my client, Mr. Hopkins, in

that. We asked -- we actually asked for that based on some

material misrepresentations, and I'm assuming that you're

granting that.

THE COURT: I will tell you that I'm quite skeptical

of your argument, but since we're having a Franks hearing, if

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 36 of 47
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you want to explore that, I'll allow you to explore it.

MR. GRUEL: Perfect. Thank you, Your Honor.

Your Honor was talking about the things that could be

disclosed sooner rather than later. One of them I would make a

Henthorn request of Stonie Carlson, which is a request of his

personnel file for any previous times of any type of issues

with respect to his veracity; and, likewise, any Jencks

material that -- I don't know if he testified in the Grand Jury

in this case or testified in any other cases where his

credibility was called into question as an agent of the FBI or

the task force that we're talking about.

THE COURT: Any objection?

MR. LEONARD: I mean, he'll -- no. No, Your Honor.

THE COURT: Okay. Granted.

MR. GRUEL: All right. Thank you, Your Honor.

THE COURT: So that will be part of the discovery that

the Government turns over.

MR. JORDAN: Your Honor, did you want -- I mean, we

can get back to you, perhaps, within 14 days with a proposed

schedule.

THE COURT: Sure. That sounds fine.

MR. LEONARD: Okay.

MR. JORDAN: That's good.

MR. LEONARD: No objection from the Government.

THE COURT: Okay. So we'll do that.

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 37 of 47
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Do you want to have a further status conference in 14 days

or do you want to just submit a stipulated schedule? I don't

want to waste everybody's time coming in.

MR. LEONARD: I'll be out of town. I prefer to just

submit a stipulation.

THE COURT: Okay. That's fine.

MR. JORDAN: That's fine, Your Honor.

THE COURT: Is there anything else we should talk

about now, like severance, for example, or something?

MR. JORDAN: Well, Your Honor, it seems everybody

agrees there should be a severance, so maybe Your Honor would

want to set with the -- I'm not sure the Government disagrees

with our proposal of two trials, though. I'm unsure about

that.

THE COURT: Yeah. So my -- you know, I forgot my

notes. I had written out three options, and let me see if I

can remember which option was my favorite.

MR. JORDAN: Your Honor, can I just timeout, go back?

THE COURT: Sure.

MR. JORDAN: I forgot -- and I thank Mr. Dressler for

reminding me -- that one of the attorneys just had brain

surgery and is out for four weeks.

THE COURT: Oh, yeah.

MR. JORDAN: So maybe we'd have four weeks to get

something to you because she did have a serious operation.

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THE COURT: Yeah. Is she -- but is she -- has she

come out of it okay?

MR. JORDAN: Yeah. Mr. Dressler says he talked to

her. It was for an aneurysm.

MR. DRESSLER: I did. She's recovering and she can't

even drive for at least three or four weeks, but I expect maybe

five weeks out or six weeks out she'll be ready to roll.

THE COURT: Well, give her my best, please. 

And that's fine if you want to wait in light of that. Of

course, if you want to wait four weeks to submit the

stipulation, that's fine.

You know, I suppose we could talk about the severance

issue later, but let me see if I can remember which was the

option that I thought, and I don't -- I think it was, again,

not something that anybody proposed, but I think it was -- let

me see if I can remember.

Who is the defendant who has the drug counts? Is that

Mr. Hopkins?

MR. JORDAN: Chanta Hopkins, Your Honor.

MR. GRUEL: Mr. Hopkins.

THE COURT: Okay. I believe that the option that I

liked the best was to try -- to have a separate trial for

Mr. Hopkins on the drug counts and then to have a trial for all

the other defendants on everything else.

MR. JORDAN: So I think --

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MR. GRUEL: I would object to that, Your Honor.

MR. JORDAN: Mr. Gruel has the objection because of

the gun counts.

MR. BORO: Your Honor, Mr. Holmes also would object to

that. As we point out in our joinder on severance, there's no

factual connection between the gun count in one and the credit

card conspiracy. So we believe it's highly prejudicial to lump

that in. It's a different time period really. It's a

different set of acts. It has nothing to do with credit cards.

The only connection offered by the Government was the

Count 3 that charged the use of the false identity to rent the

guns, and Your Honor has now dismissed that count. That was

against defendant Artis. So we would request that the gun

count be tried separately. It's a very short matter. It's

probably a trial of a couple days.

MR. GRUEL: And, frankly, Your Honor, the reasons why

co-defendants asked for severance from Mr. Hopkins and the drug

charges are identical to the reasons Mr. Hopkins would not want

to be in trial with the co-defendants on the gun charges. It's

the prejudicial overspill that comes from that. Guns and drugs

kind of carries negative inferences regardless of how the Court

tries to compartmentalize that.

So that's my objection to having Mr. -- Mr. Hopkins has no

problem being tried alone on his case. It does not do him any

good to be tried separately on the drugs and then go with the

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 40 of 47
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co-defendants on the credit card and the firearms.

MR. LEONARD: The difference in the case of

Mr. Hopkins, Your Honor, is that he is charged in the

conspiracy for the credit card fraud and the drugs, the

evidence of which will overlap because of the search of his

apartment, which found evidence of both. So it really serves

judicial economy to have those two tried together; and I think

the issues about spillover, about influence on the jury, are

issues that we see in countless cases, and you deal with those

with jury instructions.

So if the Court is inclined to do two trials, I think the

better proposal is to try the gun counts against those

defendants, and then the conspiracy and the drugs together,

because in particular the overlap of the evidence in those

latter two.

THE COURT: Okay. Well, I'm not going to make a

decision on that now. We'll have an opportunity to discuss it

again. Let's see what kind of trial, if any, we're having

after the --

MR. JORDAN: The Franks hearing may be dispositive.

THE COURT: So is there anything else that we ought to

be talking about right now?

MR. JORDAN: Well, Your Honor, as long as you're not

setting a trial date, which I don't think you are, then we

don't have to talk about the deadlines for the discovery. I

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 41 of 47
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appreciate that the new assistant has gone through things and

given us new materials, so that's good, and so we'll keep

working with him.

There might be some more motions to be filed from the

defendants since we've gotten new discovery, but we can say

that in the statement we're going to give you.

The 404(b) can wait. Discovery can wait. The severance

you've talked about. You've talked about the informant and the

motion to suppress. So I think the only thing left is perhaps

Mr. Gruel's motion.

MR. GRUEL: Right.

Your Honor -- 

THE COURT: Which motion is that? Sorry.

MR. GRUEL: On behalf of Mr. Hopkins, we basically

brought the same type of motions that Mr. Donnell Artis brought

as well, and we asked specifically for a Franks hearing that

Your Honor is talking about. So I don't need to belabor that. 

But we also joined in and brought to the Court's attention

many of the facts that we've already talked about, and that is

Stonie Carlson, his veracity, his misrepresentations or his

problems, as we've referred to them.

But one thing I'll point out to Your Honor with respect to

Rule 41, which I saw in the second declaration -- Rule 41 being

that you have to use a federal magistrate for a search warrant

or federal judge -- it's clear in Stonie Carlson's second

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 42 of 47
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declaration filed after the Defense had filed all these motions

that he was already working with the federal prosecutor I think

over in Oakland. He makes reference to talking to --

THE COURT: You mean when he sought the state warrant?

MR. GRUEL: Yes.

THE COURT: When he sought the warrant from the state

court judge?

MR. GRUEL: In March of 2016, before any of these

search warrants were put into play, he says he talked with an

undisclosed AUSA about what had been found at Mr. Artis'

girlfriend's apartment. That tells me, based on my experience

as a former prosecutor, as well as Mr. Jordan, that there's an

AUSA working on the case.

THE COURT: Maybe. I mean, maybe he was pitching the

case to the U.S. Attorney's Office and they weren't interested

yet, and so there wasn't an active federal investigation and

that's why he got the state warrant.

MR. GRUEL: We'll find out in the Franks hearing, but

I think it's more nefarious than that, and that's why I

mentioned in my motions to suppress everything found because

this was the time they used some of the information found at

Mr. Artis'. 

I don't know if it's the same confidential informant.

There's at least two references to a confidential informant. I

don't know if it's the same one, but they then used this

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 43 of 47
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information to go to an Alameda Superior Court judge to get

this StingRay device what they believed to be on Mr. Hopkins'

phone to try to locate him outside of Alameda in San Francisco.

So we have a full -- another issue that has arisen and

that is the scope -- in addition to everything Your Honor has

talked about -- the scope of the state warrant that they got

out of Alameda. They used it indiscriminately over in

San Francisco, a whole different county. So it seems to me if

they're going to be using a Superior Court judge in one county,

it's limited to the boundaries of over in the East Bay. That's

another issue that we've raised with respect to scope.

We also raised in that issue, Your Honor, or in our own

motion, a very glaring omission by Mr. -- or a material --

THE COURT: It sounds like you're just kind of

previewing the stuff that you want to be exploring in the

Franks hearing.

MR. GRUEL: Yes.

THE COURT: You're not asking for a ruling from me on

anything right now.

MR. GRUEL: No.

THE COURT: Okay. That's fine.

MR. GRUEL: Your Honor, we filed these motions.

There's numerous exhibits. I just wanted the Court to be aware

that what's going to be presented at this Franks hearing is

going to be larger in scope than the concerns of Mr. Jordan.

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 44 of 47
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We have also plenty of concerns with respect to the use of

the StingRay or the -- what is it called? -- the cell phone

simulator.

THE COURT: Right. And as I said to you, I'm fairly

skeptical of your argument. I will allow you to explore it

but, you know, the case for a Franks hearing on that I think is

weaker and I'm not going to let you go on forever on that

during the Franks hearing.

MR. GRUEL: But the same issues with respect to

probable cause exist, the scope of the warrant. They actually

went inside his residence, or waited till -- they used the

simulator while it was in practice while he was inside his

residence, his home. And so the things that you're talking

about, the privacy interests and the privacy interests in one's

home, is at play with respect to Mr. Hopkins.

They were using the simulator while he was inside his

apartment, essentially violating the Fourth Amendment as we

will argue and have argued and will show through the Franks

hearing as well.

So I just wanted Your Honor to know that we had these

issues. We've presented them. We hope to explore them at the

hearing.

THE COURT: Okay.

MR. LEONARD: Well, now I'm a little nervous about the

Franks hearing, Your Honor, because a Franks hearing --

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 45 of 47
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THE COURT: I am too.

MR. LEONARD: -- is for the purpose of determining

whether or not the affiant made material -- and that's

critical -- material to the probable cause finding

misrepresentations or omissions so --

THE COURT: I understand that. It can be controlled

at the Franks hearing.

MR. LEONARD: Thank you, Your Honor.

MR. GRUEL: Well, I could be more specific than that,

and I can direct the Court and counsel to paragraph 10 where

Stonie Carlson said he had Artis' phone in his -- well, had

possession of it and that he was receiving incoming calls while

in possession.

THE COURT: I'm familiar with the argument. I have

looked at that. I'm telling you I don't --

MR. GRUEL: All right, Your Honor. 

THE COURT: -- it does not strike me as material, but

I'll allow to you explore it a bit with Agent Carlson since

he's already going to be here.

MR. GRUEL: Very good. Thank you, Your Honor.

THE COURT: Okay. Anything else?

MR. JORDAN: I don't think so, Your Honor.

MR. LEONARD: Not from the Government.

THE COURT: Okay. So we'll look forward to hearing

from you in a few weeks on how we're going to proceed.

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Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 46 of 47
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MR. JORDAN: Thank you, Your Honor.

MR. LEONARD: Thank you, Your Honor.

MR. GRUEL: Thank you, Your Honor.

MR. BORO: Thank you, Your Honor.

(Proceedings adjourned at 11:07 a.m.) 

---oOo--- 

CERTIFICATE OF REPORTER

 I certify that the foregoing is a correct transcript 

from the record of proceedings in the above-entitled matter. 

DATE: Friday, December 8, 2017 

_________________________________________ 

Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR 

 U.S. Court Reporter 

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