[00:00:00] Speaker 00:
You may proceed.

[00:00:01] Speaker 00:
Good morning, Your Honors and Counsel.

[00:00:02] Speaker 00:
Thank you, and may it please the Court.

[00:00:05] Speaker 00:
I'd like to reserve two and a half minutes of rebuttal time, please.

[00:00:09] Speaker 00:
The specific issue in this case is whether the district court possessed subject matter jurisdiction to adjudicate what one district judge in the Eastern District of Virginia deemed an end run around the plaintiff's constitutional rights.

[00:00:25] Speaker 00:
by engaging in a course of judicial deception in order to circumvent a ruling under the compassionate release statutes that that judge on several occasions deemed appropriate, first at the initial hearing, second in denying a request for a stay, and third upon remand from the United States Court of Appeals for the Fourth Circuit.

[00:00:52] Speaker 00:
This court will look to the actual conduct that is alleged in the complaint irrespective of the label to which the plaintiff addresses it.

[00:01:04] Speaker 00:
So whether it's labeled false arrest, false imprisonment, malicious prosecution, it's the conduct itself that must be addressed to determine whether there's action.

[00:01:14] Speaker 01:
Do you agree that all of your causes of action

[00:01:18] Speaker 01:
the causation for them flows through the decision-making of the prosecutor?

[00:01:24] Speaker 00:
No, I do not, Your Honor.

[00:01:25] Speaker 01:
How does it go around the decision-making of the prosecutor?

[00:01:28] Speaker 00:
Well, the complaint itself and the search warrant affidavit were sworn to by an FBI agent.

[00:01:33] Speaker 01:
Right, but the prosecutor submits that to the agent, doesn't submit that directly.

[00:01:37] Speaker 01:
The prosecutor is going to review that and has to make a decision whether that is up to snuff.

[00:01:42] Speaker 01:
And isn't that the discretionary action we're talking about here?

[00:01:45] Speaker 00:
We submit it as not, Your Honor, because that would be an end run around the protections that the Federal Tort Claims Act itself are designed to afford a litigant who alleges malicious prosecution.

[00:01:58] Speaker 00:
As the Court knows, and as Judge Collins stated, a prosecutor will be involved at every stage of an investigation

[00:02:10] Speaker 00:
However, the Congress was aware of that when it passed the law enforcement exception.

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Undoubtedly, they were aware of that, because that is the common practice.

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And it is, I would submit, not the intention of Congress nor the courts to afford a law enforcement officer who engages in the type of conduct that we allege to rely on a prosecutor's involvement to skirt judicial review.

[00:02:38] Speaker 01:
What is the violation that makes it non-discretionary?

[00:02:42] Speaker 01:
Is it the Franks' violation, the failure to say what he was in prison for?

[00:02:46] Speaker 00:
It essentially stems from the Franks' violation, Your Honor.

[00:02:50] Speaker 01:
And the Franks' violation is, they didn't state that he was in jail for a fraud offense.

[00:02:57] Speaker 01:
Correct.

[00:02:57] Speaker 01:
Is there more to it than that?

[00:02:59] Speaker 00:
Well, we certainly haven't had any discovery or even reviewed the grand jury transcripts.

[00:03:04] Speaker 01:
In terms of what's pleaded, is the Franks' violation the failure to say that it was... Warren affidavit says he was in for 20 years, but it doesn't say.

[00:03:12] Speaker 01:
I mean, it's kind of odd because it's easy to say he's in for security fraud or whatever the particular fraud was, but it's missing.

[00:03:19] Speaker 00:
It is, it does all stem from the intentional or reckless omissions from the initially the search warrant affidavit that then flowed into the criminal complaint affidavit, which both preceded the grand jury indictment.

[00:03:33] Speaker 01:
Yes, sir.

[00:03:35] Speaker 01:
you know, as in the Xi case, that there was something like flat-out perjury, that just making up facts and pushing it past the prosecutor's, you know, unwitting eye.

[00:03:44] Speaker 00:
Well, I don't know exactly what.

[00:03:47] Speaker 00:
No, I think the FBI agent Reid in Jacksonville, we don't know how it was.

[00:03:52] Speaker 00:
He connected with the Northern District of California for venue, but he did reach out to a prosecutor who supervised, according to the

[00:04:02] Speaker 00:
only all i know is from the fact that the prosecutor's name is attached to the affidavit that said he reviewed it for legal sufficiency which is a standard practice in just about every prosecutor's office that um... unfamiliar with yes sir but it all does stem but judge brinkham a review this as well and she made a comment that in her uh... opinion and and she is more informed than uh... just about any judge in the uh...

[00:04:29] Speaker 00:
in the case.

[00:04:30] Speaker 01:
I think she said she thought it was a clear Franks violation.

[00:04:33] Speaker 01:
She did.

[00:04:34] Speaker 00:
Something to that effect, as I recall.

[00:04:36] Speaker 00:
Yes.

[00:04:36] Speaker 00:
And Judge Alsop never got a chance to even express his opinion on it because on the eve of the hearing, the case was dismissed in its entirety.

[00:04:47] Speaker 00:
But Judge Brinkhamer did say she thought there was clear evidence of a Franks violation and that she believed there was

[00:04:53] Speaker 00:
no probable cause, although she didn't use that exact terminology in her analysis at the very final hearing when Mr. Ferizi was allowed to return to Kosovo.

[00:05:06] Speaker 00:
But again, I get back to the idea that because a prosecutor is involved in the criminal justice system, that would blow a hole in the entire Federal Tort Claims Act statute, and no law enforcement officer could ever be held to account as a matter of fact because a prosecutor is almost always, 99.9% of the time,

[00:05:29] Speaker 00:
involved in some aspect of the decision to prosecute, whether it be reviewing the complaint for legal sufficiency, providing legal analysis of the statutes that are under investigation, agreeing that the venue is appropriate, whatever

[00:05:47] Speaker 00:
aspect the prosecutors involved with.

[00:05:49] Speaker 00:
And let's just pick venue for one simple example because Mr. Farisi never set foot in the Northern District of California, yet the charges were brought here and he was transported across the country in immigration custody when he was charged.

[00:06:03] Speaker 00:
He was in immigration custody in Pennsylvania and brought out here in a rain three months later.

[00:06:08] Speaker 00:
So at some point somebody had to review at least a venue allegation and for computer fraud venue can be just about

[00:06:15] Speaker 00:
that the district was chosen because of the maximum inconvenience to Mr.

[00:06:32] Speaker 00:
who was clearly entitled to a compassionate release motion that both the district court and courts of appeal in the Fourth Circuit approved, and keeping him in custody during the height of COVID was the vindictiveness, part of the vindictiveness that we're alleging.

[00:06:52] Speaker 01:
I think, you know, George Alsop only gave an oral ruling, but you can get a sense from his comments during the hearing.

[00:06:57] Speaker 01:
He was worried about the breadth of your argument.

[00:07:00] Speaker 01:
and he seemed to discern that if you're claiming that what defeats the discretionary function exception is there's a constitutional violation, because you don't have any discretion to violate the Constitution, that that would make every alleged constitutional violation actionable under the Federal Tort Claims Act, just across the board, that everyone who claims anything wrong in their prosecution, and suddenly everyone gets to file, and he,

[00:07:25] Speaker 01:
just recoil from the breadth of that and didn't see a middle line.

[00:07:29] Speaker 01:
Was he wrong to see that that's how broad your argument are, or is it narrower than you thought?

[00:07:35] Speaker 00:
In the first instance, I would think that's an issue for Congress to address.

[00:07:38] Speaker 00:
Congress passed the law enforcement exception in the wake of the Watergate scandals and the church hearings and all that and decided that there needed to be a mechanism for people to pursue legal relief against law enforcement officers who are constrained by the

[00:07:55] Speaker 00:
Constitution, and the cases we cite in our brief all involve actions by law enforcement officers, whether it be a tax prosecution or some other type of criminal conduct.

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But unfortunately, you know, the case itself, this case itself, the breadth of the case is determined by the audacity of the FBI agent that we allege in

[00:08:20] Speaker 00:
taking umbrage at a district court's decision that this person who the government invested a lot of time and money in prosecuting was going to be released and from what i understand this district judge is not uh... known uh... particularly for being lenient towards terrorists admitted terrorists but she determined that a twenty-year sentence needed to be reduced because of the discretion afforded to her in the government agent specifically who was in charge of the underlying investigation

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chose to initiate a criminal investigation.

[00:08:52] Speaker 00:
Now, if he had gone no further than simply investigating and not swearing out a search warrant affidavit or not swearing out a criminal complaint, then I would agree with the government and the cases they cite that mere investigative activity would not be subject to

[00:09:09] Speaker 00:
the federal tort claims act or the law enforcement exemption but once you initiate judicial process you are then involving article three judges in the decision to pursue this course of action that then puts them in the position of having to rule upon

[00:09:28] Speaker 00:
what we label as judicial deception, which is there's a number of cases that California recognizes what you call a judicial deception claim, which again is just a label, but it's the same thing.

[00:09:40] Speaker 00:
Whether the conduct alleged by Agent Reed is intentional or reckless, whether it is by omission or by affirmative misrepresentation, it is still actionable under the federal tort claim.

[00:09:52] Speaker 03:
I guess I have a question.

[00:09:53] Speaker 03:
Weren't there several facts supporting probable cause?

[00:09:57] Speaker 03:
In addition to this fact that is an omission, I think by all accounts seems to be an omission.

[00:10:03] Speaker 03:
Weren't there substantial facts that support probable cause regardless?

[00:10:07] Speaker 00:
ever ruled on that so I think that is one avenue that I suppose this court could take even though I would submit that that's for the district court in the first instance to do but as I mentioned Judge Brinkham I thought otherwise I think what the government argued in the court below was that the fact that the search warrant revealed the the fruits of the search warrant

[00:10:31] Speaker 00:
provided some information that they then added to the complaint affidavit and said look what we said was accurate is one argument that they could make but again as Judge Brinkham has stated even with that additional information these facts were known to the government in 2016 it was

[00:10:49] Speaker 00:
disclosed to the FBI when Mr. Farisi came to the United States and started negotiating for a plea bargain.

[00:11:00] Speaker 00:
So it's not anything that was new to the government.

[00:11:04] Speaker 01:
I don't see how that's relevant.

[00:11:08] Speaker 01:
It all seems to me to come down to the Franks' violation, the fact that they didn't want him to get out of jail.

[00:11:15] Speaker 01:
Is that a constitutional violation?

[00:11:18] Speaker 00:
Well, that would be a due process claim that, again, is a label.

[00:11:23] Speaker 01:
Suppose Judge Brinkerman wants to let him out because of COVID, and he actually has uncharged murders, and somebody else looks at this and says, I'm not letting this guy out, and he should be tried for those murders.

[00:11:34] Speaker 01:
Absolutely.

[00:11:35] Speaker 01:
And then brings those charges.

[00:11:36] Speaker 01:
There'd be no due process violation.

[00:11:39] Speaker 00:
No, there wouldn't.

[00:11:40] Speaker 01:
So it all comes down to whether this charge was valid and supported by probable cause, which goes back to Frank.

[00:11:46] Speaker 00:
Well, if they knew about the murders before he engaged in the criminal, in the plea bargain for the terrorism charges, then that would be one thing.

[00:11:55] Speaker 00:
But they knew about them and chose not to pursue them at the time.

[00:11:59] Speaker 01:
They might let the murder case sit because he's in for 20 years.

[00:12:02] Speaker 01:
But if he's going to get all of a sudden sprung after four years on offense of this kind of gravity, maybe they would think, well, now this other conduct we didn't look at maybe is worth a look.

[00:12:14] Speaker 00:
All I could say to that, Your Honor, is I don't know off the top of my head what a federal murder sentence is, but a state murder statute in California is 25 to life if there's special circumstances.

[00:12:25] Speaker 00:
It's life without parole or capital punishment, so without weighing the potential sentence that he's facing, I do believe the sentences he was facing under the guidelines for the charges that were brought in the Northern District were less than the 20 years, so they could not have

[00:12:40] Speaker 00:
extended his sentence beyond that, but they wanted to ensure that he served more time.

[00:12:48] Speaker 00:
They were simply unhappy.

[00:12:50] Speaker 00:
When I say they, I mean Agent Reed.

[00:12:52] Speaker 00:
I don't know who he was in coordination with, and I don't mean to bring the Assistant U.S.

[00:12:59] Speaker 00:
Attorney

[00:13:00] Speaker 00:
into this, because his conduct is discretionary.

[00:13:04] Speaker 00:
I agree with that wholeheartedly.

[00:13:06] Speaker 00:
But again, I see my time is up.

[00:13:09] Speaker 00:
OK.

[00:13:09] Speaker 01:
You want to reserve any time for rebuttal?

[00:13:11] Speaker 00:
Yes, sir.

[00:13:11] Speaker 00:
OK.

[00:13:11] Speaker 00:
Thank you.

[00:13:12] Speaker 00:
Thank you very much.

[00:13:13] Speaker 01:
All right.

[00:13:13] Speaker 01:
Thank you.

[00:13:14] Speaker 01:
We'll hear now from Mr. Helland.

[00:13:30] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:13:32] Speaker 02:
Kelsey Helland on behalf of the United States.

[00:13:36] Speaker 02:
The District Court correctly recognized in this case that a prosecutor's decision whether to bring charges against an individual is discretionary conduct.

[00:13:45] Speaker 02:
The District Court also correctly recognized that the appellant has not alleged the violation of any kind of mandatory rule such that the prosecutor's conduct could be called non-discretionary.

[00:13:56] Speaker 01:
The district court... Why isn't the Franks' violation that non-discretionary violation?

[00:14:02] Speaker 02:
For two reasons, Your Honor.

[00:14:03] Speaker 02:
First, there's no clear constitutional rule that required that the reliability information that the appellant alleges was... Why does it have to be a clear constitutional rule?

[00:14:13] Speaker 01:
Why not just a constitutional rule?

[00:14:16] Speaker 02:
The cases from the Supreme Court and this court talking about the kind of conduct that renders conduct non-discretionary, the kind of rule,

[00:14:23] Speaker 02:
that renders conduct non-discretionary has to be specific.

[00:14:26] Speaker 02:
I look to the Berkovitz case, the Lamb case out of this court.

[00:14:30] Speaker 02:
In order for a rule to render conduct non-discretionary, such that the discretionary function exception does not apply, it has to provide clear guidance to the federal officer such that their conduct has no room for decision-making.

[00:14:43] Speaker 01:
Okay, so this argument that it's a clear violation comes from the

[00:14:49] Speaker 01:
Berkowitz line of cases and has nothing to do with the qualified immunity argument that you've made as an alternative.

[00:14:56] Speaker 02:
That's right.

[00:14:56] Speaker 02:
It's from the Berkowitz line of cases.

[00:14:58] Speaker 02:
I think it also comes from the plain text of the statute that Congress enacted.

[00:15:02] Speaker 02:
You know, the policy behind the discretionary function exception recognized by Variger lines and Galbert, you know, along the Berkowitz line of cases

[00:15:11] Speaker 02:
Congress recognized that they didn't want judicial second-guessing of executive branch decisions where there is proper room for decision making.

[00:15:19] Speaker 01:
But don't you think it's really odd to do this?

[00:15:22] Speaker 01:
I mean, this is a really long and detailed warrant application, and a lot rests on this MI figure in the warrant.

[00:15:31] Speaker 01:
And they know what he's in prison for, and they say he's in for 20 years, but they don't say that it's for fraud offense.

[00:15:38] Speaker 01:
And the rules of evidence treat

[00:15:41] Speaker 01:
Offenses involving dishonesty is different when you're talking about witness credibility.

[00:15:46] Speaker 01:
Why leave something like that out?

[00:15:48] Speaker 01:
It's it's a few words to throw in.

[00:15:50] Speaker 01:
It seems very odd.

[00:15:52] Speaker 02:
I can't speak to why that kind of information was omitted.

[00:15:54] Speaker 02:
It is a long affidavit.

[00:15:56] Speaker 02:
I agree around 38 pages.

[00:15:58] Speaker 03:
and supported by... Well, affidavits are always long, certainly these kinds of affidavits, but that's an important fact.

[00:16:04] Speaker 03:
And so you acknowledge, though, it was a Franks violation, correct?

[00:16:07] Speaker 02:
No, no, I don't think it was a Franks violation.

[00:16:09] Speaker 02:
I don't think that omission was material.

[00:16:11] Speaker 02:
I think there's plenty of information from which this court could find that there was probable cause here.

[00:16:15] Speaker 03:
You're asking a judge to hold the information of a CI important and relevant for their consideration, one who was in jail for fraud, and you're not including that information in the affidavit.

[00:16:31] Speaker 03:
That's not material?

[00:16:33] Speaker 02:
I don't think that's material here when there's so much additional information that supported probable cause.

[00:16:37] Speaker 02:
You look to the Reeves case or the Melling case, there's plenty of cases from this court that hold omission of an informant's past offense

[00:16:46] Speaker 02:
does not defeat probable cause and therefore is not material when there's other information that does support probable cause.

[00:16:52] Speaker 02:
Here you had the returns from the search warrant, documentary evidence showing that stolen PII was transferred in February 2018.

[00:17:00] Speaker 02:
By the way, the government didn't know in February of 2018 that, the government didn't know in 2016 rather, sorry, when it interviewed the appellant that in February 2018 he was gonna be coordinating with his brother to transfer that stolen information.

[00:17:14] Speaker 02:
In any event, there was testimony from a second informant who reported that she had been contacted and coordinated with the appellant's brother to set up those Bitcoin accounts.

[00:17:24] Speaker 03:
I don't quibble with your position that there may have been sufficient information to support probable cause, but the fact that it's not included seems to be a glaring omission on the government's part.

[00:17:36] Speaker 03:
They should have included it, and I'm surprised that you're not even conceding that point.

[00:17:41] Speaker 02:
I would have included it myself, I think, Your Honor, but that doesn't mean that there wasn't probable cause here.

[00:17:46] Speaker 02:
It may have led to a Frank's hearing, but it would not have led to a Fourth Amendment violation.

[00:17:51] Speaker 02:
And in any event, there wasn't a clear rule in place at the time of the conduct that mandated that that information needed to be included.

[00:17:58] Speaker 02:
I would point the court to the Illinois versus Gates decision, landmark Supreme Court decision setting forth the probable cause standard.

[00:18:05] Speaker 02:
That case talked about the need for flexibility and a common sense approach in the probable cause evaluation.

[00:18:11] Speaker 02:
It specifically rejected the idea that there was a mechanical formula that had to be put in place for what needs to be included in a probable cause affidavit.

[00:18:20] Speaker 02:
You can't read Illinois versus Gates and the discretionary function exception and come to the conclusion that an agent needs to include specific information like what was included here, especially not under this court's subsequent decisions finding probable cause even when reliability information was omitted.

[00:18:41] Speaker 02:
I mentioned earlier that there were two reasons why there was no violation here.

[00:18:45] Speaker 02:
And that brings me to the second one, which is simply that there was not a Fourth Amendment violation.

[00:18:50] Speaker 02:
There was probable cause.

[00:18:52] Speaker 02:
There was the documentary evidence.

[00:18:54] Speaker 02:
There was the testimony of the female informant.

[00:18:57] Speaker 02:
There was the appellant's past criminal history, over five years of hacking.

[00:19:02] Speaker 02:
All of this was before the district court, when the district court rendered his decision that the prosecutor's decision here was discretionary.

[00:19:09] Speaker 02:
And I think it's worth taking a step back and remembering that the decision making does flow through the prosecutor.

[00:19:15] Speaker 02:
The general dynamics case from this court instructs that the court is to look at the prosecutor who has an independent obligation to decide whether evidence is sufficient to bring charges.

[00:19:27] Speaker 02:
The appellant talks about the role of the FBI agent.

[00:19:30] Speaker 02:
But ultimately, it was the prosecutor who signed the legal sufficiency of the complaint.

[00:19:35] Speaker 02:
It was the prosecutor who presented evidence to the grand jury.

[00:19:38] Speaker 02:
And by the way, the complaint existed for about two weeks before there was a grand jury indictment.

[00:19:43] Speaker 02:
And the appellant admits that he doesn't know what was presented to the grand jury.

[00:19:47] Speaker 02:
So he does not know what the basis for the charges that were brought against him for.

[00:19:54] Speaker 02:
So he focuses on this sort of two-week period where there was a complaint.

[00:19:58] Speaker 02:
and the indictment had not been filed, but he was held during the course of his prosecution under an indictment with charges, you know, presented to a grand jury.

[00:20:06] Speaker 02:
So I actually think that alone is fatal to his claim because he admits he does not know what was presented to the grand jury that brought the charges on which he was held.

[00:20:14] Speaker 03:
Was that information, they're sealed, but was that information presented?

[00:20:18] Speaker 03:
Do we know?

[00:20:19] Speaker 02:
I'm sorry, was it presented?

[00:20:20] Speaker 02:
Was it disclosed?

[00:20:22] Speaker 02:
Was it disclosed to the appellant?

[00:20:23] Speaker 02:
To the grand jury, the information about the CI?

[00:20:29] Speaker 02:
I do not know the answer, Your Honor.

[00:20:30] Speaker 02:
Again, it's sealed.

[00:20:31] Speaker 02:
I don't know.

[00:20:36] Speaker 02:
Okay.

[00:20:36] Speaker 02:
Briefly, Your Honors, the appellant had said below that he should have been granted leave to amend, and he requests leave to amend here.

[00:20:45] Speaker 02:
I think that the reasons that he has put forward, the additions that he says he would make to his complaint,

[00:20:52] Speaker 02:
are not sufficient.

[00:20:53] Speaker 02:
There's no reason to grant leave to amend here because he doesn't allege the kind of facts that this court and others have held would render the discretionary function exception inapplicable.

[00:21:04] Speaker 02:
He admits that there was no fabrication of evidence here.

[00:21:08] Speaker 02:
He admits that there was no perjury or witness tampering here.

[00:21:12] Speaker 02:
He does not say he's able to allege the kinds of things that would render the exception inapplicable.

[00:21:20] Speaker 02:
Claims that he makes about

[00:21:22] Speaker 02:
You know, the constitutionality of the conduct, they're mere legal conclusions.

[00:21:25] Speaker 02:
They are not the type of thing that would allow this case to get past the discretionary function exception.

[00:21:30] Speaker 02:
So leave to amend was properly denied, and nothing he said in his papers before this court should change that.

[00:21:37] Speaker 02:
Finally, Your Honors, I think it's clear that even if the discretionary function exception did not apply, the intentional tort exception would apply.

[00:21:46] Speaker 02:
The grabbing, as appellant admits,

[00:21:49] Speaker 02:
the court is to look at the gravamen of his complaint, that is, the facts underlying the charges and not the label.

[00:21:55] Speaker 02:
And just as in general dynamics, the gravamen here is the decision of a prosecutor to bring charges.

[00:22:02] Speaker 02:
But a prosecutor is not a law enforcement officer whose conduct can give rise to liability under the intentional tort exception.

[00:22:10] Speaker 02:
I'd point the court to the Manan Singh decision, which recognizes that.

[00:22:14] Speaker 02:
So it really boils down to whether the court views the alleged conduct here as

[00:22:19] Speaker 02:
resulting out of the acts of a prosecutor or an investigator who admittedly had to go through a prosecutor for charges to be filed.

[00:22:26] Speaker 02:
We think it's clear that it was the prosecutor at issue here and therefore the intentional tort exception also applies.

[00:22:33] Speaker 02:
The court has no further questions.

[00:22:36] Speaker 02:
We would request that the court affirm the district court.

[00:22:38] Speaker 02:
Thank you.

[00:22:39] Speaker 01:
Thank you.

[00:22:39] Speaker 01:
All right, we'll hear rebuttal now.

[00:22:47] Speaker 00:
On page 27 of my brief, I address the case of Miles versus United States, which specifically alleges malicious prosecution cases where the court allowed a case to go forward with allegations of fabrication of evidence, witness tampering, lies under oath.

[00:23:04] Speaker 00:
Lies under oath are a Frank's violation, whether they are intentional or reckless or by omission or by affirmative misrepresentation and that the discretionary function immunity does not shield the United States from liability in those circumstances.

[00:23:17] Speaker 00:
That is as specific as a rule as is needed because every case is different.

[00:23:24] Speaker 00:
This is not a qualified immunity analysis where you have to have an analogous case where point by point, and I know that's a raging debate throughout the United States, but we don't need to be that specific.

[00:23:40] Speaker 00:
I'm going to mispronounce this, so I'm sorry, but Cao Xingzi versus Haogen is this case.

[00:23:49] Speaker 00:
In that case, the government

[00:23:54] Speaker 00:
alleged that plaintiff alleged that the FBI agent knowingly and deliberately or with reckless disregard for the truth made materially false statements or omissions in a warrant application that is as simple as a statement is what we have here now whether or not the uh... claim itself addresses whether it was made in the search warrant affidavit or the uh...

[00:24:16] Speaker 00:
or the criminal complaint, that is the allegation we have.

[00:24:20] Speaker 01:
On page 841 of She versus Haugen, they go through, I mean, it's like blatant lies where the affidavit says one thing and they know the fact is the opposite of what is said in the affidavit.

[00:24:33] Speaker 01:
Do you have anything like that here?

[00:24:35] Speaker 00:
Well, I don't know what the criminal, what was presented to the grand jury, so I have to push that part of it to the side.

[00:24:45] Speaker 00:
Again, what Judge Mendoza was saying about the materiality of a confidential informant who's alleged to be a fraudster, I think, is a deliberate omission that makes a difference.

[00:24:58] Speaker 03:
And a judge... But Xi is more egregious than the conduct that you've described here.

[00:25:02] Speaker 00:
Isn't that... I would say so.

[00:25:04] Speaker 00:
I would agree with that.

[00:25:05] Speaker 00:
I mean, but it doesn't have to be as egregious to be egregious enough to...

[00:25:11] Speaker 00:
pass muster under the federal tort claims act discretionary in it you know uh... immunity exception or function excuse me there's no bar uh... below which uh... wrongdoing by uh... law enforcement officer is is

[00:25:27] Speaker 00:
should be allowed to evade judicial review because that would just be a license for every law enforcement officer to go down that road and just do just enough to fall below the threshold where a judge could pass conduct on it.

[00:25:43] Speaker 00:
All we're asking for at this point in time is an opportunity to engage in a fact-finding analysis

[00:25:49] Speaker 00:
on our allegations, which we believe passed that bar of discretionary immunity, to reach the factual determination of whether a probable cause exists.

[00:25:59] Speaker 00:
And I think my time is up.

[00:26:01] Speaker 00:
That's expired.

[00:26:02] Speaker 01:
OK.

[00:26:02] Speaker 01:
All right.

[00:26:02] Speaker 01:
Thank you, counsel.

[00:26:03] Speaker 00:
Thank you very much, Your Honor.

[00:26:04] Speaker 00:
It was a pleasure to meet you.

[00:26:05] Speaker 01:
I appreciate both counsel for your helpful arguments in this case.

[00:26:08] Speaker 01:
And the case of Farisi versus United States will stand submitted.

[00:26:13] Speaker 00:
Thank you.