[00:00:00] Speaker 01:
It is United States versus Kangro, docket 25-2079, Ms.

[00:00:04] Speaker 01:
Davis.

[00:00:06] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:09] Speaker 04:
Today, this case concerns the most protected space under the Fourth Amendment, the home.

[00:00:15] Speaker 04:
And to search one's home, the government needs probable cause, which requires specific reliable facts that have a fair probability linking evidence of a crime to that home.

[00:00:26] Speaker 04:
That did not happen here.

[00:00:29] Speaker 04:
This is for two primary reasons.

[00:00:31] Speaker 04:
First, the government did not establish the required nexus between criminality and the Euclid address that was searched in this case.

[00:00:41] Speaker 04:
Second, the good faith exception cannot save this warrant affidavit.

[00:00:46] Speaker 04:
To the first point about the required nexus, here the government does list a myriad of facts purportedly alleging criminality, but that is not enough.

[00:00:57] Speaker 04:
There must be criminality that is linked to the home that is searched.

[00:01:02] Speaker 04:
Here, that did not happen.

[00:01:04] Speaker 04:
To start with the confidential informants' statements, which the government primarily relies on, the confidential informant made statements to Special Agent A.C.

[00:01:15] Speaker 04:
that Mr. Kangro could get drugs and guns for sale if the confidential informant wanted them.

[00:01:22] Speaker 04:
However, the confidential informant never links this to the Euclid address.

[00:01:26] Speaker 03:
Do you admit there's enough from the confidential informant as to criminality?

[00:01:33] Speaker 04:
There could be enough to assert some type of crime.

[00:01:37] Speaker 04:
However, this could also just be a fairly specific crime.

[00:01:41] Speaker 04:
Yes, there could be evidence that there might be a crime of getting drugs and guns.

[00:01:48] Speaker 04:
However, this could be bluster of someone that wants to look cool.

[00:01:52] Speaker 03:
But you don't challenge that portion of the

[00:01:56] Speaker 03:
issue with respect to the affidavit supporting the warrant?

[00:02:00] Speaker 03:
No, Your Honor.

[00:02:01] Speaker 03:
So it's just the nexus between the Euclid property and that crime?

[00:02:08] Speaker 04:
Correct.

[00:02:08] Speaker 04:
There is no nexus here between any alleged crime, which the confidential informant may have alleged enough for some type of crime to happen someplace somewhere, but not at the Euclid address that was eventually searched.

[00:02:24] Speaker 04:
the confidential informant never links any type of evidence or even an assinuation that there is going to be evidence of criminality at the Euclid address.

[00:02:35] Speaker 04:
In fact, when this investigation started into Mr. Kangro in February, 2022, the Euclid address was not even part of the investigation because only a few days prior to the execution of the warrant did Mr. Kangro

[00:02:52] Speaker 04:
purportedly start moving into the Euclid address.

[00:02:56] Speaker 03:
We do have case law that suggests, I think Judge Phillips mentioned it on a prior case, that people who have firearms and also people who have drugs tend to keep them in their home.

[00:03:09] Speaker 04:
Yes, there are several cases where that is enough when the confidential informant provides sufficient facts and there is corroboration.

[00:03:17] Speaker 04:
showing that some type of criminality happened at the home, and officers inference that drugs and guns are often kept at the home may be enough.

[00:03:26] Speaker 04:
However, that's not the case here.

[00:03:28] Speaker 04:
There is not enough.

[00:03:29] Speaker 04:
In all of those other cases, there was more that would lead to a reasonable suspicion that there would be evidence of criminality at the home, including that the confidential informant bought drugs from the defendant in those cases, saw drugs and guns at the residence,

[00:03:46] Speaker 04:
actually alleged to have been at the residence.

[00:03:48] Speaker 04:
Here, none of that exists.

[00:03:50] Speaker 04:
The confidential informant never alleges that he or she even saw drugs or the drugs that Mr. Kanger was purportedly going to sell that the confidential informant even went into the Euclid address.

[00:04:06] Speaker 04:
So here, that would not apply because the confidential informant and the additional surveillance that SA agents

[00:04:16] Speaker 04:
AC did just is not enough.

[00:04:18] Speaker 04:
It does not show enough for a reasonable suspicion of criminality occurring at the Euclid address.

[00:04:25] Speaker 02:
Counsel, do you have any cases that say what you just said that you, well, a case that would say you can't draw an inference that

[00:04:36] Speaker 02:
drugs, maybe records of drug dealing or whatever, some evidence, we can infer that without having any direct observation.

[00:04:50] Speaker 02:
I mean, you're making a direct observation test, I think.

[00:04:54] Speaker 02:
And I'm wondering if there are any cases that say you have to have a direct observation, there's no inference.

[00:05:03] Speaker 04:
I wouldn't say there's cases that explicitly say a direct observation is needed, but there are cases where when there is not a direct observation or that direct observation is stale, it is not enough.

[00:05:15] Speaker 04:
For instance, US v. Cordova and US v. Roach both show that when there's some observation of officers or confidential informant

[00:05:26] Speaker 04:
that there was even a drug deal or more than is in this case happening months prior, that is not enough to establish a nexus between the criminality and the home.

[00:05:39] Speaker 04:
Here, the only allegations are that Kangaroo could get drugs and guns at some point in some time.

[00:05:46] Speaker 04:
All of the cases that do find that there is enough of a nexus to support that inference that drugs and guns are kept at the home have more.

[00:05:56] Speaker 04:
So it's more of a compilation of cases showing that when that inference is supported, there is more evidence to back it up, or there is more of a reasonable suspicion to back it up.

[00:06:08] Speaker 01:
Thank you.

[00:06:08] Speaker 01:
So really, you're basing it on it could have been bluster.

[00:06:12] Speaker 04:
It could have been bluster, but even if it wasn't bluster, even if you want to assume that there was some type of criminality happening, criminality at some place at some point in time is not enough for the search of a home.

[00:06:25] Speaker 04:
There needs to be more.

[00:06:26] Speaker 04:
There needs to be that nexus to that criminality and the home.

[00:06:31] Speaker 01:
And the drugs and the guns don't supply that by itself?

[00:06:34] Speaker 04:
There are no drugs in this case up to this point.

[00:06:38] Speaker 04:
The confidential informant doesn't see

[00:06:40] Speaker 04:
any drugs.

[00:06:42] Speaker 04:
And the assertion that Kangro had a gun on his waistband happened months prior.

[00:06:50] Speaker 04:
And there are multiple cases, including USB Roach, USB Nolan, that state that in drugs and gun trafficking cases specifically, that evidence is unlikely to stay stationary, and that it's unlikely to be in one place for more than weeks or a few months at a time.

[00:07:07] Speaker 01:
On appeal, Mr. Kangro is not contesting.

[00:07:11] Speaker 01:
that he, in fact, resided at Euclid.

[00:07:13] Speaker 01:
Is that right?

[00:07:15] Speaker 04:
No.

[00:07:16] Speaker 04:
The Euclid address was Mr. Kangro.

[00:07:22] Speaker 04:
There's a contention that Mr. Kangro, there's enough evidence to place him at that evidence, at least a reasonable suspicion.

[00:07:29] Speaker 04:
There was surveillance that showed moving boxes, Mr. Kangro going in and out of the house, that there's not enough to support criminality at that home.

[00:07:38] Speaker 04:
In fact, the confidential informant even stated that

[00:07:40] Speaker 04:
Mr. Kangra was splitting time between different locations.

[00:07:44] Speaker 04:
So this even lowers the reasonable suspicion that criminality is going to be found at a home that he's purportedly moving into just a few days prior.

[00:07:52] Speaker 03:
I'm assuming we agree with you that the warrant was based on insufficient nexus.

[00:08:03] Speaker 03:
Why doesn't this fall under the good faith exception?

[00:08:06] Speaker 03:
We've put a pretty high standard

[00:08:11] Speaker 03:
on preventing a good faith exception.

[00:08:16] Speaker 03:
And that's based on Supreme Court authority.

[00:08:20] Speaker 03:
So why doesn't this fall easily within the good faith exception?

[00:08:25] Speaker 04:
Correct, Your Honor.

[00:08:26] Speaker 04:
The good faith standard is quite a high standard to meet.

[00:08:30] Speaker 03:
A high standard for a defendant to defeat.

[00:08:33] Speaker 03:
Exactly.

[00:08:34] Speaker 03:
To rebut.

[00:08:36] Speaker 04:
Exactly.

[00:08:37] Speaker 04:
However, this is for two primary reasons.

[00:08:41] Speaker 04:
that because the lack of nexus was so deficient on the face of the warrant affidavit that there's just not enough for a reasonable officer to think that something could be there.

[00:08:55] Speaker 04:
For instance, in Sugs 2, Chief Judge Phillips, your dissenting opinion even stated that we presume that officers know the law, including that there needs to be a nexus between the criminality and the home.

[00:09:09] Speaker 04:
and that when that's devoid on the face of the affidavit, then our inquiry ends there.

[00:09:13] Speaker 04:
There's just not enough, and the good faith exception does not apply.

[00:09:17] Speaker 04:
However, if your honors disagreed that they're just on the face of this affidavit, there is no nexus, which defendant contends that on the face it is not enough.

[00:09:28] Speaker 04:
There are material misrepresentations and omissions that were recklessly included in this warrant affidavit.

[00:09:36] Speaker 03:
Is that a new argument?

[00:09:39] Speaker 04:
No, Your Honor, this is included in our briefing.

[00:09:45] Speaker 04:
So the reckless omissions here include a reference to a probation officer's search of a

[00:09:56] Speaker 04:
of seven months old that where Mr. Kangaroo was living with a then girlfriend and that found certain contraband in the home.

[00:10:05] Speaker 04:
But this was seven months prior and special agent AC also lists out the types of contraband that was found at the home, the different investigation.

[00:10:15] Speaker 04:
including a picture that he links to Mr. Kangrow of a purported gun.

[00:10:21] Speaker 04:
However, in the U.S.

[00:10:23] Speaker 04:
probation officer memo that Agent AC reviews to include this in his warrant affidavit, it's also stated that that gun is purportedly an airsoft gun that belonged to Mr. Kangrow's girlfriend's son.

[00:10:37] Speaker 04:
And so this is just one example of Special Agent AC cherry picking information

[00:10:43] Speaker 04:
out of the underlying facts and documents in this case to present Mr. Kangrow in the worst possible light.

[00:10:51] Speaker 01:
Is the universe of what you're talking about in your cut and pasted version of the affidavit?

[00:10:58] Speaker 04:
Sorry, could you?

[00:10:59] Speaker 01:
The additions, the deletions?

[00:11:04] Speaker 04:
I'm not sure I'm understanding your honor's question.

[00:11:06] Speaker 04:
I'm sorry.

[00:11:09] Speaker 04:
If in the motion to suppress, the affidavit does include all of these different omission strikes, the falsehoods, and that is included in the motion to suppress.

[00:11:20] Speaker 04:
And we do bring up in our briefing the various omissions and recklessly false information.

[00:11:26] Speaker 04:
I'm happy to.

[00:11:27] Speaker 01:
What I'm talking about is there's an application for a warrant, and it is the application.

[00:11:35] Speaker 01:
There are things that are added into this, which I think are the points that you're making.

[00:11:38] Speaker 01:
For example, just opening it and not choosing any one particular paragraph 23, there's an addition.

[00:11:45] Speaker 01:
However, in the lighting is so bad up here.

[00:11:49] Speaker 01:
In 2005, Kangrow denounced his membership in SAC.

[00:11:54] Speaker 01:
That's not as part of the original.

[00:11:56] Speaker 04:
No, no, that is an exhibit in the defense counsel's motion to suppress that they included to show

[00:12:04] Speaker 04:
had certain statements that were shown to be recklessly false or omissions that were excluded that should have been included were there, it would have shown that there just was recklessly false omissions and statements that should have been.

[00:12:18] Speaker 01:
And that's my question is, what's in this document with the additions and the deletions, is that the universe of what you're relying on for reckless or intentional?

[00:12:27] Speaker 04:
Yes, Your Honor.

[00:12:29] Speaker 04:
So for instance,

[00:12:31] Speaker 04:
Another example of where Agent AC cherry picked information or just included recklessly false information was this connection to Mr. Kangro and the SAC where it was shown in a document that Special Agent AC cited to a case that Mr. Kangro was involved in.

[00:12:51] Speaker 04:
In that same documentation that Special Agent AC reviewed showed that Mr. Kangro was actually a witness in that case and testified

[00:13:00] Speaker 04:
against his former gang.

[00:13:03] Speaker 04:
This is clearly material because even Special Agent A.C.

[00:13:08] Speaker 04:
at the hearing stated that had he known this information that he wouldn't have even sought the warrant.

[00:13:15] Speaker 04:
So this is the very definition of materiality.

[00:13:19] Speaker 04:
If he had known or just looked a little further on the document that he reviewed, then he would have seen that this connection he was trying to make between the SAC and Mr. Kangrow was just not accurate and even would have led Special Agent A.C.

[00:13:35] Speaker 04:
to rethink this Warren affidavit and he even said that we would not have been here today when discussing the hearing because he would not have done things the same way.

[00:13:45] Speaker 04:
And if there are no further questions, I would like to reserve the remainder of my time for rebuttal.

[00:13:51] Speaker 01:
Very well.

[00:13:52] Speaker 04:
Thank you, Your Honors.

[00:13:57] Speaker 00:
May it please the Court.

[00:13:59] Speaker 00:
My name is Paul Mishleviets.

[00:14:00] Speaker 00:
I represent the United States in this case.

[00:14:03] Speaker 00:
If it pleases the Court, I want to correct a factual statement that my colleague just made when she told you during her argument

[00:14:11] Speaker 00:
Kangro said he could get guns and drugs if the CHS wanted him to.

[00:14:18] Speaker 00:
That is not what Special Agent Acey put in the affidavit.

[00:14:21] Speaker 00:
When you look at, I'm looking at record on appeal volume two, page 58, paragraph 41, what the CHS reported to Brian Acey was that Kangro had firearms and fentanyl for sale and to contact Kangro if the CHS wanted them.

[00:14:41] Speaker 00:
Obviously, if Fenton was coming to Albuquerque from Arizona, which is the phenomenon that Special Agent Acey was investigating, which led him to kangaroo among other people, someone saying, I could get this if you wanted it, is not the same as, I have this.

[00:14:58] Speaker 00:
Call me if you need it.

[00:15:00] Speaker 00:
And so I just wanted the court to be clear on what was actually in the affidavit there.

[00:15:04] Speaker 00:
This court should affirm the decision of Judge Garcia not to suppress any of the evidence in this case, primarily because

[00:15:11] Speaker 00:
The affidavit contains ample probable cause.

[00:15:15] Speaker 00:
And to answer your question presiding Judge Phillips, even Ms.

[00:15:20] Speaker 00:
Johnson, who was trial counsel for Kangrow, even her version of the affidavit that includes all the things she might have liked, Brian AC to have submitted to Judge Molson,

[00:15:31] Speaker 00:
and withdraws everything she might have liked Special Agent A.C.

[00:15:34] Speaker 00:
not to have submitted to Judge Molson, even that affidavit has probable cause, which is one of the ways that you know that none of the statements that Special Agent A.C.

[00:15:44] Speaker 00:
made about Kangrow or about his history or about the investigation of Kangrow are material to the probable cause determination that Judge Molson made.

[00:15:54] Speaker 00:
Additionally, one of the legal things that my colleague said is that

[00:16:01] Speaker 00:
there must be a direct nexus between criminality and the residents to be searched.

[00:16:07] Speaker 00:
And as Judge, I pointed out, she's really

[00:16:11] Speaker 00:
To make is one verb is the verb the judge I'd used.

[00:16:15] Speaker 00:
But really I would say that she's asking this court to make a rule that does not currently exist, that there has to be a direct observation of criminality at the house.

[00:16:25] Speaker 00:
We know that is not what we have.

[00:16:26] Speaker 00:
And one of the reasons we know that's not what we have is that the original warrant to look for drug and gun behavior by Mr. Kangra was for a different address, was for the Ross address.

[00:16:38] Speaker 00:
And when Special Agent A.C.

[00:16:40] Speaker 00:
prepared to serve that warrant on the April 13th, I think it was a Wednesday morning take down, they saw in their surveillance, their pre-execution surveillance, that he had moved out.

[00:16:53] Speaker 00:
And so rather than search a place where he didn't live anymore, even though they may have arguably have been authorized to do so, they ceased work and then started to find the place to which he had moved.

[00:17:04] Speaker 00:
which is where Brian Easey sends the CHS out and says, go find where Kangrow is now.

[00:17:09] Speaker 00:
CHS gives new and updated information about where he had moved to, and this is really contained most closely in paragraph 36, which is on page 57 of the second volume of the Record of Appeal, that he moved some of his property out to Edgewood, which as you know, you could take judicial notice, it's about 30 minutes east of Albuquerque.

[00:17:32] Speaker 00:
But he's also staying in a house on a cul-de-sac behind the new future school on Cutler.

[00:17:38] Speaker 00:
Brian A.C.

[00:17:38] Speaker 00:
drives there, sees Kangro's car at this Euclid address, comes back another time with Special Agent Vida Montes, sees the car again, sees another car associated with someone that he believes may have a relationship with Kangro at that time, and then seeks this warrant for the new and updated address.

[00:17:56] Speaker 00:
Of course, no one has seen

[00:17:59] Speaker 00:
drug activity directly at that new address.

[00:18:02] Speaker 00:
The connection is between Kangrow and the criminality, and then the new information is between Kangrow and this new residence.

[00:18:09] Speaker 00:
And Special Agent AC was very upfront with that to Judge Molson when he sought this warrant that is now being challenged.

[00:18:17] Speaker 00:
The United States takes the position there's nothing improper about that.

[00:18:20] Speaker 00:
There's nothing reckless about that.

[00:18:22] Speaker 00:
There's nothing misleading about that.

[00:18:23] Speaker 00:
And if you look at volume three, which is the transcript of the

[00:18:30] Speaker 00:
I think of it as a Frank's hearing.

[00:18:31] Speaker 00:
I showed up ready for a Frank's hearing.

[00:18:33] Speaker 00:
If you look at that transcript, one of the things Special Agent A.C.

[00:18:39] Speaker 00:
noted was that Judge Molson is not shy about telling him when she thinks his affidavit is insufficient.

[00:18:45] Speaker 00:
And he takes steps to correct that and present her with an improved affidavit.

[00:18:50] Speaker 00:
So that questioning was in the context of his good faith in the service of the warrant that he received from Judge Molson.

[00:18:59] Speaker 00:
I present it now for the additional reason of explaining why the indirect connection between criminality and the residence, meaning the connection between kangaroo and criminality and then kangaroo in this new residence, which is endorsed by this court in its analysis in the United States against mora, is

[00:19:20] Speaker 00:
certainly sufficient.

[00:19:22] Speaker 00:
We do not need a new rule that there has to be direct evidence linking criminality to the new address.

[00:19:29] Speaker 00:
And therefore, the defendant loses on that requirement for the new rule.

[00:19:34] Speaker 03:
One thing that I found a little troubling here was the court held a hearing that appears to be much like a Frank's hearing and then said, well,

[00:19:46] Speaker 03:
I'm not going to consider any of the evidence that you came forward with at this hearing.

[00:19:52] Speaker 03:
That seems rather odd to me.

[00:19:55] Speaker 03:
I mean, shouldn't the court, once it holds the hearing and allows the defendant to come in and put on evidence, shouldn't that evidence then be part of the analysis?

[00:20:07] Speaker 00:
This court has the power to make such a rule.

[00:20:10] Speaker 00:
I am not aware of such a rule already existing.

[00:20:14] Speaker 00:
As you saw with your review of the transcript in Volume 3, Judge Garcia did not do this because it's what I asked him to do.

[00:20:24] Speaker 03:
But it does appear, I mean, it is a quasi-Frank's hearing.

[00:20:29] Speaker 00:
Yes.

[00:20:30] Speaker 00:
I would say yes.

[00:20:32] Speaker 00:
And we know that if Judge Garcia had held a Frank's hearing as a matter of grace rather than of right to borrow from Herrera, I would lose if I complained about that, and I'm aware about that.

[00:20:45] Speaker 00:
I went to that hearing prepared to help Special Agent A.C.

[00:20:50] Speaker 00:
defend himself against this attack, against his integrity, against his honesty by Ms.

[00:20:55] Speaker 00:
Johnson, who was trial counsel for Mr. Kangro.

[00:20:57] Speaker 00:
And then I was as surprised as anyone to read the order that was published afterwards.

[00:21:02] Speaker 00:
I couldn't find any case from the 10th Circuit that says the technique that Judge Garcia used is not allowed.

[00:21:09] Speaker 00:
So I don't think it's reversible.

[00:21:11] Speaker 00:
But also importantly,

[00:21:13] Speaker 00:
What Mr. Kangrow has not briefed here is how it would move the needle if you considered the exhibits that were introduced at that hearing, but that were not attached to the motion in which Mr. Kangrow sought the hearing.

[00:21:27] Speaker 00:
You don't have any analysis before you of, oh, well, if the transcript of the probation search came in,

[00:21:34] Speaker 00:
that would have sufficiently undermined probable cause so that Judge Molson wouldn't have granted the warrant for the new Euclid address.

[00:21:41] Speaker 00:
Or Brian A.C., assuming this panel finds that probable cause is deficient despite all my arguments and despite the contents of the affidavit itself.

[00:21:52] Speaker 00:
Let's say this panel says the affidavit was sufficient such that we need to rely on good faith, as the district court did.

[00:22:01] Speaker 00:
There's no analysis that says, if these exhibits came in, here's how you would know that Brian A.C.

[00:22:06] Speaker 00:
didn't serve that warrant in good faith, and therefore government loses.

[00:22:10] Speaker 00:
That has just not been briefed to the court.

[00:22:13] Speaker 01:
Is it more than exhibits?

[00:22:14] Speaker 01:
Was there testimony that would fall under that as well?

[00:22:18] Speaker 00:
Yes.

[00:22:18] Speaker 00:
And it's my position that there was not really any persuasive power behind the testimony, which may or may not be why Judge Garcia ended up taking the procedural route that he took.

[00:22:30] Speaker 01:
Well, you say it as though it was by design.

[00:22:33] Speaker 01:
Was it just confusion?

[00:22:36] Speaker 00:
So as I, and I'm mostly trying to refer to volume three, which is the transcript, there was a point at which I had Brian A.C.

[00:22:45] Speaker 00:
on the stand and he was talking about his good faith and how he has great respect for Judge Molson and does whatever she tells him, you know, expeditiously.

[00:22:53] Speaker 00:
And Judge Garcia indicated that he found

[00:22:59] Speaker 00:
the dialogue boring or that he wasn't interested in that and that he wanted to talk about the facial warrant challenge.

[00:23:06] Speaker 00:
And I told him, I said, the CMECF notice we got was that the court was setting a hearing on the defendant's motion for a hearing.

[00:23:17] Speaker 00:
And the hearing the defendant moved for was a Frank's hearing.

[00:23:21] Speaker 00:
So I showed up ready for a Frank's hearing.

[00:23:23] Speaker 00:
Brian Aisey showed up ready to defend his honor against these attacks from Ms.

[00:23:27] Speaker 00:
Johnson.

[00:23:28] Speaker 03:
Well, the defendant showed up for Frank's hearing.

[00:23:30] Speaker 00:
Yes, she was ready.

[00:23:32] Speaker 00:
Ms.

[00:23:32] Speaker 00:
Johnson was ready.

[00:23:33] Speaker 00:
She had her own witness who testified after Brian A.C.

[00:23:36] Speaker 00:
But in this dialogue with Judge Garcia, he basically said, listen, I'm just not very interested in this.

[00:23:42] Speaker 00:
I'll let you make a record if you want.

[00:23:44] Speaker 00:
And what I said to him was, it's not a matter of, and I think I'm recalling my words correctly, but please look at the transcript, volume three, to be sure.

[00:23:52] Speaker 00:
It's not that I want to make a record.

[00:23:54] Speaker 00:
There's an open attack against the integrity and the honesty of this.

[00:23:58] Speaker 00:
And if you say, Frank's challenge denied, defendant loses on Frank's, OK, we can move on to oral argument on whether there's PC on the face of the affidavit.

[00:24:07] Speaker 00:
But while the attack on Brian Acey remains live, I'm not going to stop doing my job as a government attorney to defend him.

[00:24:17] Speaker 00:
And he's certainly not going to quit giving true and faithful testimony under oath to help the court understand his good faith in executing Judge Molson's warrant.

[00:24:26] Speaker 00:
And then after Special Agent A.C.

[00:24:28] Speaker 00:
testified, the defense investigator testified whose job, someone might disagree, I consider her to have been called to criticize Brian A.C.

[00:24:37] Speaker 00:
and see how she would do better.

[00:24:39] Speaker 03:
That's all very interesting, but at the end of the day, for me, the question is how do you hold a hearing

[00:24:46] Speaker 03:
which is, you know, looks like a Frank's hearing, quacks like a Frank's hearing, everybody treats it as a Frank's hearing, and then you say, I'm going to make my decision, but I'm not going to look at any of the evidence that we took during this Frank's hearing.

[00:25:05] Speaker 03:
I find that rather odd.

[00:25:08] Speaker 00:
I have never seen it before, Your Honor, and I did not invite it, as you see from the record.

[00:25:12] Speaker 03:
Okay, so let's, before we run out of time, what if we say we don't want to deal with any of this and we just say, let's look at the good faith exception.

[00:25:24] Speaker 03:
According to your friend, we can't apply the good faith exception here.

[00:25:30] Speaker 03:
Do you think that that is correct, and if not, why?

[00:25:35] Speaker 00:
I think it is deeply misguided.

[00:25:37] Speaker 00:
As you can see from Judge or from Erlinda Johnson's proposed affidavit, even with all the additions the defense would want and even with all the deletions the defense would want, the affidavit is not so lacking in probable cause that Brian A.C.

[00:25:56] Speaker 00:
wouldn't trust that Judge Molson granted it correctly, meaning

[00:26:01] Speaker 00:
what we heard today was essentially a facial bad faith challenge that the affidavit was so obviously lacking in nexus that Brian Nacy would not trust that Judge Molson granted it correctly.

[00:26:15] Speaker 00:
And that is just not

[00:26:17] Speaker 00:
uh, following this, this court's law as set out in United States against Cotto, United States against Roach, United States against Campbell, which are all cases about even a minimal nexus is enough to support the good faith execution of a warrant.

[00:26:33] Speaker 00:
Here, our position as the Nexus was entirely sufficient to contain probable cause.

[00:26:37] Speaker 00:
But even if we skip ahead to good faith analysis, as Judge Garcia did, there is nothing deficient on the Nexus to drop it below the cases in which this court had said the execution was in good faith.

[00:26:53] Speaker 00:
Additionally, if you do look at the transcript, you will see that none of the statements Special Agent A.C.

[00:27:01] Speaker 00:
made in that affidavit were

[00:27:03] Speaker 00:
the United States takes the position they weren't wrong, but even if they were incorrect or incomplete, then they were not material to probable cause, or additionally, they were not recklessly made.

[00:27:19] Speaker 00:
There is one thing I do want to focus a little bit on in the very little remaining time I have, and it's this idea that Brian A.C.

[00:27:25] Speaker 00:
is supposed to believe

[00:27:28] Speaker 00:
James Kangro, when Kangro says he's no longer involved with the Soldiers of Aryan Culture, despite sending new selfies after getting out of prison with the swastika tattoo still on his stomach, despite the Soldiers of Aryan Culture tattoo still across his stomach, even though, as Special Agent AC testified, people who go to federal prison and are on federal supervision afterwards have access to services to remove or to cover up tattoos like that.

[00:27:54] Speaker 00:
Special Agent AC specifically said in the affidavit that one of the

[00:27:58] Speaker 00:
components of his training and experience is that folks will lie to conceal their gang ties, and I'm directing your attention to paragraph 44, which is on page 58 of volume two record on appeal.

[00:28:11] Speaker 00:
Much of the complaining from the defense about the soldiers of Aryan culture, which is essentially, by the way, background, there is

[00:28:21] Speaker 00:
There is very few paragraphs in which special agent AC describes on pages 51 and 52 that soldiers of Aryan culture.

[00:28:31] Speaker 00:
But the reason he's asking for the affidavit is the saying that he can provide fentanyl, saying that he has guns and fentanyl to sell.

[00:28:39] Speaker 00:
Call him if you need them.

[00:28:41] Speaker 00:
And then the investigation that leads to his new location.

[00:28:45] Speaker 00:
The soldiers of Aryan culture stuff is fundamentally immaterial.

[00:28:49] Speaker 00:
I see that I'm out of time.

[00:28:50] Speaker 03:
With regard to the pictures included of the cat with the gun, should he have revealed that that was not a gun, that it was a, what was it, an air gun?

[00:29:08] Speaker 00:
So one of the, if I may answer despite my lack of time, Your Honor, the search where the

[00:29:19] Speaker 00:
where the guns were sought but the probation office told Laura Christie in advance they were coming and then they found real Glock magazines and a real Glock magazine loader and then got some pictures of guns with a cat.

[00:29:33] Speaker 00:
I don't know whether that particular gun was an airsoft gun or a real pistol.

[00:29:38] Speaker 00:
It doesn't look like a Glock to me, I can tell you that.

[00:29:42] Speaker 00:
Brian Acey wasn't the guy who did that search.

[00:29:44] Speaker 00:
Brian Acey found out about that search that had previously been done by the probation officer.

[00:29:50] Speaker 00:
And so he wasn't there for the dialogue.

[00:29:52] Speaker 00:
He wasn't there for the description of the gun.

[00:29:53] Speaker 00:
He wasn't there to say,

[00:29:55] Speaker 00:
Are you telling me this gun in the photo is an airsoft gun owned by your son?

[00:30:02] Speaker 00:
And then he wasn't there to see Laura Christie's demeanor when she answered that question.

[00:30:05] Speaker 00:
He's picking up this investigation later.

[00:30:08] Speaker 00:
There's no real way for him to know whether that picture is of a real gun or not.

[00:30:15] Speaker 00:
So we take the position, the United States takes the position that he didn't do anything reckless by telling the judge what he knew, and he didn't know that that wasn't a real pistol.

[00:30:25] Speaker 00:
And also, I don't have any indication that he was present for or ever had the transcript of the dialogue from that probation search that Ms.

[00:30:38] Speaker 00:
Johnson tried to enter into the record at the, let's call it a Frank's hearing.

[00:30:43] Speaker 00:
You saw, if you read volume three, my objection to that exhibit, which is that it wasn't authenticated by anyone who was a participant in the conversation.

[00:30:51] Speaker 00:
It was just something that

[00:30:52] Speaker 00:
They hired a non-participant to write out based on the audio recording.

[00:30:59] Speaker 00:
Subject to any other questions, that's what I have and United States respectfully request this panel affirm the decision of the district court.

[00:31:07] Speaker 00:
Thank you.

[00:31:08] Speaker 01:
Thank you.

[00:31:13] Speaker 01:
Let's give counsel another two and a half minutes so the time has been even.

[00:31:17] Speaker 01:
You don't have to use it.

[00:31:19] Speaker 04:
Thank you, Your Honor.

[00:31:23] Speaker 04:
Thank you, Your Honors.

[00:31:24] Speaker 04:
First, I would like to address the point about the Frank's hearing.

[00:31:28] Speaker 04:
While it is unclear what exactly process happened here on page 111 of the hearing transcript, Judge Garcia does say he will allow the hearing, presumably meaning the Frank's hearing.

[00:31:39] Speaker 04:
And the fact is that Judge Garcia did allow evidence, and it was pertinent to the issue at hand.

[00:31:45] Speaker 04:
In USB Herrera, the court stated that we should err on the side of more process to see that justice is done.

[00:31:53] Speaker 04:
And the issues at hand are showing in the information that was excluded by Judge Garcia, that was attached and presented at the Frank's Not Frank's hearing, show the reckless cherry picking of evidence and information that Agent AC included in his affidavit to the magistrate as the drafting and executing officer, including citing to the probation officer memo where

[00:32:21] Speaker 04:
It, in fact, does say on the same page that the gun with the cap was an airsoft gun.

[00:32:27] Speaker 04:
So he had that information.

[00:32:28] Speaker 04:
It was on one single page that he cited to.

[00:32:32] Speaker 04:
And even if we say that even Agent AC says in the hearing transcript at pages 69 through 70,

[00:32:43] Speaker 04:
that things would have been different had this information been included, like the dropout information that a kangaroo did, in fact, drop out of the SAC.

[00:32:53] Speaker 04:
And an agent with 22 years of experience knows the law, knows that a nexus is required.

[00:32:59] Speaker 04:
And unlike my co-counsel or my opposing counsel here said,

[00:33:04] Speaker 04:
that it's not just a nexus between criminality and the defendant and the defendant and the home.

[00:33:11] Speaker 04:
It's evidence of criminality and the home, as is shown in US v. Nolan, where it states that even repeated instances of drug activity outside the home is not enough for a nexus.

[00:33:22] Speaker 04:
Thank you.

[00:33:24] Speaker 01:
Thank you, counsel, for your arguments.

[00:33:26] Speaker 01:
The case is submitted.

[00:33:27] Speaker 01:
Counsel are excused.