[00:00:00] Speaker 04: We'll start with 24-6241, United States versus Reed. [00:00:11] Speaker 04: I'm just guessing how to pronounce your name. [00:00:15] Speaker 04: Toronjo? [00:00:17] Speaker 04: Pretty close, yeah. [00:00:18] Speaker 04: Pretty close? [00:00:19] Speaker 04: OK. [00:00:19] Speaker 04: But what's really the pronounce? [00:00:22] Speaker 03: Toronjo. [00:00:22] Speaker 03: You can call him Judge Hertz. [00:00:24] Speaker 01: Yeah. [00:00:27] Speaker 01: All right. [00:00:27] Speaker 01: Can everyone hear me? [00:00:28] Speaker 01: Yes. [00:00:30] Speaker 01: Good morning. [00:00:30] Speaker 01: Perrin Tarangio on behalf of the appellant, Tyler Reed. [00:00:34] Speaker 01: This federal child pornography case began with a local investigation into stolen farm equipment. [00:00:39] Speaker 01: After arresting Mr. Reed for possession of a flatbed trailer that, during a traffic stop, police determined had been reported stolen, officers seized and searched his iPhone, pursuant to a fatally overbroad warrant, discovering pictures and videos of child pornography. [00:00:53] Speaker 01: The warrant to search Mr. Reed's iPhone was unconstitutional because it authorized a search of the whole contents of the phone [00:00:58] Speaker 01: for evidence of possession of stolen property of any value at any time, even though officers were investigating the theft of five specific pieces of stolen farm equipment that went missing over a discrete two-month period. [00:01:10] Speaker 01: Because the warrant failed to employ the specificity available and authorized a search that exceeded its probable cause foundation, the search of the iPhone violated Mr. Reed's Fourth Amendment rights and suppression as required. [00:01:21] Speaker 01: I first want to turn to the particularity requirement. [00:01:24] Speaker 00: So counsel, can I ask you about the notice that you filed? [00:01:26] Speaker 00: So are you conceding those other issues? [00:01:29] Speaker 01: No, Your Honor. [00:01:29] Speaker 01: The notice was merely to notify this court that I wanted to focus on this issue, but I'm happy to answer any questions the court might have on the other issues we've raised. [00:01:38] Speaker 00: OK. [00:01:39] Speaker 00: So on the particularity, is it facially overbroad because it lacks a temporal limitation? [00:01:50] Speaker 00: Your principal argument? [00:01:51] Speaker 01: Yes, I think there are two components to our argument. [00:01:53] Speaker 01: First, that it lacks particularity, because a warrant does not employ the specificity available. [00:02:00] Speaker 01: So it's not limited to the two-month period, and it's not limited to the five tractors and trailers that were under investigation. [00:02:08] Speaker 01: So that's the particularity component of our argument. [00:02:11] Speaker 01: But because of that lack of specificity, the warrant also exceeds its probable cause foundation. [00:02:17] Speaker 01: At best, [00:02:18] Speaker 01: Given a generous reading of the affidavit, the affidavit connects the phone to the theft or possession of the three tractors and two trailers that were taken over a two-month period. [00:02:31] Speaker 01: But the warrant allows for a search of possession of any stolen property of any value at any time, which is outside the scope of the probable cause that the officers had. [00:02:40] Speaker 04: How long had the defendant been using this vacant lot? [00:02:45] Speaker 04: The owner let him use it. [00:02:47] Speaker 04: Is there something in the record indicating when their first conversation was? [00:02:51] Speaker 01: Your Honor, we looked to the affidavit for that. [00:02:53] Speaker 01: And the owner of the field didn't say when he started using it, but he did say when he started putting equipment on the field, which is in the middle of the two-month period. [00:03:01] Speaker 01: So the lease of the field, according to the affidavit, doesn't actually extend to the two-month period at all. [00:03:09] Speaker 01: And this court's cases make clear that when officers have information to specify a warrant, make it more particular, they have to use it. [00:03:16] Speaker 01: And that's this court's case in Leary. [00:03:20] Speaker 01: And here, they fail to employ that specificity available. [00:03:24] Speaker 04: So what if the warrant could have allowed them to look [00:03:35] Speaker 04: for an earlier period, but in fact, that didn't eventuate. [00:03:40] Speaker 04: So the warrant may be broader than it should be, the language, but in fact, the search didn't go beyond those five tractors for two months. [00:03:52] Speaker 04: First of all, is that correct factually that the search didn't go beyond it? [00:03:57] Speaker 04: And if that is correct factually, what does that do with respect to suppression? [00:04:02] Speaker 01: Thank you, Your Honor. [00:04:03] Speaker 01: That's a good question. [00:04:04] Speaker 01: So it's irrelevant whether the officers in fact searched beyond the scope of the warrant here, given the limited nature of the issues on appeal. [00:04:13] Speaker 01: The government has waived any reliance on an exception to the exclusionary rule, like the good faith exception. [00:04:20] Speaker 01: So that question about how far did the search actually go, that's a question that goes to good faith. [00:04:24] Speaker 04: And here where the government... [00:04:27] Speaker 04: There are no cases saying, well, the warrant allowed them to search this as well. [00:04:32] Speaker 04: There wasn't probable cause to search for that. [00:04:35] Speaker 04: But they, in fact, didn't go beyond the scope of what they should have been allowed by this warrant. [00:04:43] Speaker 01: Yes, Your Honor. [00:04:44] Speaker 01: There are cases talking about that, but only in the good faith context, because that's where it's relevant. [00:04:48] Speaker 01: how far the officers actually understood the warrant to go and how far they in fact searched are questions that go to good faith, whether they reasonably understood the warrant as limited to a particular offense and whether they in fact did that. [00:05:03] Speaker 01: So those cases don't get at the threshold question, which is how much specificity is required in the warrant. [00:05:09] Speaker 01: So just because the officers didn't go beyond here doesn't mean that the warrant was particularized. [00:05:17] Speaker 01: And that question gets at good faith. [00:05:19] Speaker 00: Well, some of what your argument, what's in tension, maybe you can help me with this, is we're supposed to look at warrants for practical accuracy, not hypertechnicality. [00:05:31] Speaker 00: And on the other hand, we have this requirement that you're relying on, that if there's information known, it should be included. [00:05:37] Speaker 00: How do those two principles fit together in this case in your favor? [00:05:44] Speaker 01: This case is a good example of a very simple investigation, so we don't have a complex crime, right? [00:05:50] Speaker 01: The trailers were stolen, they were tracked to a field, they were all found in the same place, and they were tied to Mr. Reed's. [00:05:56] Speaker 01: This is not a very complicated investigation and not a long period of time. [00:06:01] Speaker 01: And so this court has made clear that [00:06:04] Speaker 01: the nature of the investigation and the offense are what determines how much information needs to be in the warrant. [00:06:09] Speaker 01: And so this court doesn't need to say temporal limitations have to be used in any theft case. [00:06:14] Speaker 01: This court doesn't have to say that. [00:06:16] Speaker 01: But given the allegations in the affidavit and what is and what isn't in the affidavit, it's very clear that temporal limitations should have been used as well as listing the tractors and trailers under investigation. [00:06:29] Speaker 01: So the scope of the ruling here can be quite narrow, and I think it's directly supported by Leary and this court's cases on particularity and over-breadth. [00:06:41] Speaker 03: Let me ask you a follow-up to my colleague's question, and that is, is the issue here just a simple, common-sense question of is this an action that was discreet, a one-time only affair within this two-month [00:06:59] Speaker 03: window that all the officers arguably had probable cause to believe is that Mr. Reed had stolen five tractor trailers. [00:07:11] Speaker 03: Much like in Armandora's, the majority characterized the investigation as being a single event at a single time. [00:07:21] Speaker 03: Is that it, whether or not it's an ongoing crime or an incident that takes place [00:07:28] Speaker 03: discreetly, and let me ask you a compound question. [00:07:31] Speaker 03: Okay. [00:07:31] Speaker 03: Okay. [00:07:32] Speaker 03: So if that's the case, borrowing on my colleague's question about common sense and practicality, if I sell marijuana, if the police know that I sell marijuana to you and to Ms. [00:07:47] Speaker 03: Barry, does that mean on January 2nd, does that mean that the law enforcement doesn't have probable cause to believe that I have [00:07:57] Speaker 03: sold marijuana before that. [00:08:01] Speaker 03: They can't look at me, investigate the day before or the year before because all they know is that I sold marijuana on a particular day at a particular time and it's unfair to say that this is an ongoing crime like child pornography and that kind of thing. [00:08:18] Speaker 01: Okay, so first question is whether the continuous versus discrete. [00:08:24] Speaker 03: Right. [00:08:25] Speaker 01: nature of the offense is determinative. [00:08:27] Speaker 01: I think it's one of the things that has to be considered. [00:08:29] Speaker 01: And this court has said you look at the nature of the crime in determining how much specificity is required. [00:08:35] Speaker 01: So I think that's very clear here. [00:08:38] Speaker 01: And here, unlike drug trafficking, given what's in the affidavit, and again, this court doesn't have to hold that every possession or theft of [00:08:49] Speaker 01: farm equipment is a discrete crime. [00:08:53] Speaker 01: But what is in the affidavit describes a discrete crime, obviously. [00:08:58] Speaker 01: We have a start date and an end date, two months. [00:09:02] Speaker 04: When you say discrete crime, there are at least five different incidents, right? [00:09:06] Speaker 01: Right. [00:09:06] Speaker 01: We basically know it's a closed universe. [00:09:10] Speaker 01: So the affidavit contains no alleg- What do you mean we know? [00:09:14] Speaker 01: Looking at the affidavit, there are no allegations in the affidavit that say, [00:09:18] Speaker 01: Oh, we had other stolen tractors in this area and we haven't figured out who stole them. [00:09:24] Speaker 01: That might have supported a reasonable inference that this was a bigger crime than those five pieces of equipment. [00:09:32] Speaker 04: So taking Judge Becker X. Hypothetical. [00:09:36] Speaker 04: If there were five occasions in which undercover officers had purchased marijuana from someone, you could only assume that those, you had to assume that those were the only times the defendant had sold marijuana? [00:09:50] Speaker 01: I think drug trafficking is different in kind from the offense at issue here. [00:09:55] Speaker 01: So drug trafficking, we're talking about small transactions with many, many people that happen relatively continuously. [00:10:02] Speaker 01: So if you have probable cause to believe that someone's engaged in drug trafficking, [00:10:05] Speaker 01: It's much more reasonable to think that they're going to be engaged in continuous, small transactions that go unnoticed or unreported. [00:10:13] Speaker 01: Here, we've got really expensive pieces of equipment that are huge. [00:10:17] Speaker 01: They all were reported stolen. [00:10:20] Speaker 01: And it's a far less reasonable inference to think that there were a bunch of other tractors that the officers hadn't found or hadn't been reported stolen at the time. [00:10:31] Speaker 01: The theft as alleged here is quite different from drug trafficking. [00:10:34] Speaker 01: It's not a continuing offense where it's reasonable to think that there would be a bunch of transactions that just went unnoticed or were happening constantly. [00:10:42] Speaker 01: These are huge pieces of equipment and they're valuable. [00:10:45] Speaker 01: So the fact that the affidavit doesn't include any allegations that suggest there were any other tractors missing at this time, that Mr. Reed wasn't seen with any other tractors or trailers besides these five pieces, [00:11:00] Speaker 01: And there's no allegations like, in my training and experience, I know that people who steal this type of equipment have a much larger inventory than is reported stolen, or it's a continuous thing. [00:11:12] Speaker 01: But allegations in the affidavit aren't there. [00:11:17] Speaker 01: Those allegations aren't there. [00:11:20] Speaker 00: What do we do about the dates in the affidavit? [00:11:23] Speaker 00: There are specific dates in the affidavit, but they're not in the warrant. [00:11:28] Speaker 00: How should we be thinking about those dates? [00:11:30] Speaker 01: I think those dates needed to be in the warrant. [00:11:32] Speaker 01: So I think given the nature of this crime, the pieces of equipment needed to be listed in the warrant, as well as the dates, or at minimum, restricting the warrant to the first date or just before the first date where the first one went stolen and the date when the phone was seized. [00:11:48] Speaker 00: I mean, our cases are very clear. [00:11:50] Speaker 00: I think that the warrant needs to be tied to the offense, the specific offense. [00:11:54] Speaker 00: It was here, and it seems like you're suggesting [00:11:57] Speaker 00: the warrant needs to explain how the offense was committed. [00:12:01] Speaker 01: Leary supports the argument that if there is a way to do a transactional limitation or include information like a temporal limitation, it does actually have to be in the warrant, not just the affidavit. [00:12:12] Speaker 01: And that's because the particularity has to be in the warrant, not a supporting documentation. [00:12:16] Speaker 01: So in Leary, it was a single transaction that occurred over a period of time, and this court said that [00:12:24] Speaker 01: that warrant needed to be limited to that transaction and that period of time. [00:12:30] Speaker 01: This is about the same here. [00:12:32] Speaker 01: So while it's not transactions, they're basically thefts that occurred in a specific period. [00:12:37] Speaker 00: Did Armendariz change our law at all? [00:12:40] Speaker 01: I don't think so. [00:12:41] Speaker 01: I think it's acknowledging that Leary has been the law since 1988 and that specificity, that a warrant must be as specific as [00:12:52] Speaker 01: It can be under the circumstances. [00:12:54] Speaker 01: I think it's just an acknowledgement of that, especially in the phone warrant context. [00:12:59] Speaker 01: So I don't think it changes the law, but I think it makes it very clear. [00:13:01] Speaker 04: In the search of the phone, if the warrant had just been limited, as you suggest, how would the search of the phone have been different? [00:13:14] Speaker 04: from what it actually was. [00:13:18] Speaker 04: What did they do in searching the phone, this is before the second warrant, that would not have been allowed under the narrower warrant that you suggest was the only one possible? [00:13:35] Speaker 01: Well, first, Your Honor, I need to emphasize that that question gets at the reasonableness of the search, not the threshold question. [00:13:41] Speaker 01: But taking that on its face, [00:13:45] Speaker 01: The search would have been quite different, so they wouldn't have gone back beyond the May 2023 date. [00:13:53] Speaker 01: They wouldn't have gone back through files that existed beyond that, and they clearly did. [00:14:00] Speaker 01: Yes, I think so, because the indictment here goes back to 2018. [00:14:05] Speaker 01: But that would have been a record for the government to make in terms of the reasonableness of its search or [00:14:12] Speaker 01: entitlement to the plain view exception, or entitlement to the good faith exception, or maybe even inevitable discovery. [00:14:18] Speaker 01: But the government didn't try to make that record. [00:14:21] Speaker 01: They didn't raise any of those exceptions to the warrant requirement, or excuse me, the exclusionary rule. [00:14:26] Speaker 01: And it was their burden to do so. [00:14:27] Speaker 01: So this court can't rely on that factual record that wasn't made. [00:14:36] Speaker 01: Seeing no further questions, I'll reserve the remainder of my time. [00:14:43] Speaker 02: Thank you, Your Honors. [00:14:44] Speaker 02: May it please the Court. [00:14:45] Speaker 02: My name is Julia Berry. [00:14:46] Speaker 02: I will be arguing on behalf of the United States this morning. [00:14:50] Speaker 02: I was prepared to address all four issues this morning, but given Ms. [00:14:55] Speaker 02: Turingao's emphasis on the second issue in this appeal, I will start there. [00:14:59] Speaker 02: The District Court correctly concluded that the search of Mr. Reed's iPhone was sufficiently particular and not overbroad. [00:15:08] Speaker 02: This court has long held that a search of a cell phone may be sufficiently particular where it seeks to obtain evidence of a specific crime or specific types of material, and the warrant here explicitly limited the search to evidence substantiating the crime of possession of stolen property. [00:15:26] Speaker 02: The United States is aware of no case, and Mr. Reed cites none, holding that search warrants must [00:15:33] Speaker 02: always include temporal limits. [00:15:35] Speaker 00: I don't think that's what the appellant is arguing. [00:15:38] Speaker 00: I didn't understand the appellant to be arguing for per se rule, but that a temporal limitation was necessary to make this warrant valid. [00:15:48] Speaker 02: I understand that argument today, Your Honor. [00:15:50] Speaker 02: I believe in the briefing there was an indication that Leary had stood for the proposition that when there is the potential to narrow something to a specific time period, it must be included. [00:16:03] Speaker 00: Well, could you respond to the argument that we're hearing this morning, assuming it's different than what was in the brief? [00:16:09] Speaker 00: Sure. [00:16:09] Speaker 00: That the temporal limitation was required on the fact of this case? [00:16:14] Speaker 02: Certainly. [00:16:14] Speaker 02: I do think, going to Judge Bacharach's question, that a lot of this case hinges upon whether we're talking about discrete versus ongoing crime. [00:16:24] Speaker 02: And I would state that the facts in this case clearly put it in the ongoing category. [00:16:29] Speaker 02: Contrary to Ms. [00:16:31] Speaker 02: Turingao's representation that we have no evidence that Mr. Reed was involved with others, we know that Mr. Reed met with a man on a motorcycle with the suspected stolen trailer and removed a tracker warrant. [00:16:45] Speaker 02: So we know necessarily that others were involved, just as there would be in a drug transaction. [00:16:51] Speaker 02: The two-month period is key here. [00:16:53] Speaker 02: We know that there are at least five pieces of evidence with which Mr. Reed is associated. [00:16:57] Speaker 02: But there very well could be others. [00:16:59] Speaker 02: We are not talking about a seconds-long attempted assault as we were in Armandares. [00:17:05] Speaker 02: And I think that's a key distinction and one that I highlighted in my response to the 28-J letter. [00:17:11] Speaker 03: Can I probe that a little bit, Ms. [00:17:14] Speaker 03: Berry? [00:17:14] Speaker 03: Certainly. [00:17:15] Speaker 03: With regard to Armandares. [00:17:17] Speaker 03: So the discussion that I think both of you are homing in on [00:17:22] Speaker 03: is pretty limited. [00:17:24] Speaker 03: I think we're talking about a couple of sentences, but I wonder if they're particularly significant sentences, because in Armendariz, I don't read the majority to be saying that there was necessarily an inability to have a reasonable basis to go beyond the day in question that Armendariz was at the Chinook Center protest. [00:17:51] Speaker 03: What the majority focuses on is the fact that the affidavit, quote, did not explain why all data included in these keywords would be relevant to the alleged attempted assault. [00:18:05] Speaker 03: And that's after noting that the warrant had said that the keywords would be relevant regardless of the time period in which [00:18:13] Speaker 03: they occurred. [00:18:14] Speaker 03: So we might speculate that the police had probable cause to believe that Mr. Reed had been stealing tractor trailers before this two-month period. [00:18:27] Speaker 03: But I think the majority in Armandares is questioning whether or not we can just assume that, or whether or not there has to be something in the affidavit [00:18:39] Speaker 03: as Judge Rossman was alluding to say that, that there is a reasonable leave or probable cause of leave that he has been stealing tractor-trailers for a long time. [00:18:49] Speaker 03: It's just now that he got this leasehold, you know, in order to place these tractor-trailers there. [00:18:54] Speaker 02: Yes, I understand that point, Your Honor. [00:18:56] Speaker 02: And there are some contexts in current warrants where we do include that what I call hero paragraph where the affiant says, based on my training experience, this is the case. [00:19:04] Speaker 02: But based on this court's jurisprudence, not every warrant that this court has upheld has had that language. [00:19:11] Speaker 02: I don't believe that anything in Palms or Burgess or Brooks indicates as much. [00:19:16] Speaker 02: I think part of the tension in Armendariz was that the affidavit pertained to an investigation that was larger than the discrete crime of attempted assault. [00:19:28] Speaker 02: I think that the majority was trying to navigate that tension of this social media exploration being used as a pretext to find evidence of other crimes when, in fact, the warrant itself was keyed to attempted assault. [00:19:47] Speaker 02: Your Honor, if there are no further questions on that issue, I will move to the remainder of the issues so that we can preserve those arguments. [00:19:56] Speaker 02: The district court [00:19:57] Speaker 02: correctly concluded that officers with El Reno PD had reasonable suspicion to stop Mr. Reed and that officers did not impermissibly prolong that stop. [00:20:06] Speaker 02: Officers had a particularized and objective basis for suspecting that Mr. Reed was in possession of a stolen trailer under the totality of the circumstances. [00:20:15] Speaker 02: Mr. Reed was leasing the field in which officers found that stolen property. [00:20:19] Speaker 02: Witness reports of a man matching Mr. Reed's description driving a red truck [00:20:24] Speaker 02: who stored equipment in that field was also within the officer's purview. [00:20:28] Speaker 02: Officers observed Mr. Reed and the red truck at an address at which a stolen tractor was located before it was moved to the leased field. [00:20:37] Speaker 02: Mr. Reed attempted to evade law enforcement moments before the stop as evidenced by that encounter with the man on the motorcycle that I indicated previously in my remarks. [00:20:47] Speaker 02: Mr. Reed gave vague answers to Officer Dillingham when he was asked about the trailer [00:20:52] Speaker 02: And he failed to produce any proof of ownership regarding the two. [00:20:56] Speaker 03: What do you mean that he gave vague answers? [00:21:00] Speaker 03: I don't know that if someone came and stopped me on my way home and said, do you have the title to my car? [00:21:09] Speaker 03: And I said, well, I know I have it someplace. [00:21:13] Speaker 03: You can call me forgetful. [00:21:15] Speaker 03: You can call me disorganized. [00:21:16] Speaker 03: But I don't know that you can call me vague. [00:21:18] Speaker 02: Well, to be clear, Your Honor, and I'll address the question in a moment, I was actually addressing the vague answers when he is initially approached by Officer Dillingham, not after he is removed from the vehicle. [00:21:28] Speaker 02: Oh, sorry. [00:21:28] Speaker 02: So I believe initially he was giving vague answers, and I don't know that there's any dispute about that, where Officer Dillingham is asking him about the trailer, and he's saying, what do you mean? [00:21:37] Speaker 02: Why do you want to know? [00:21:37] Speaker 02: And then reveals that it's inside of Oklahoma. [00:21:41] Speaker 02: OK. [00:21:43] Speaker 02: I also believe that Mr. Reed's reliance upon Rodriguez's misplaced because officers never diverted from the purpose of the stop, which the district court correctly found was investigating that stolen trailer. [00:21:55] Speaker 02: and they hadn't completed routine traffic measures at either of the Rodriguez moments that Mr. Reed identifies. [00:22:01] Speaker 00: Ms. [00:22:01] Speaker 00: Berry, I'm sorry to interrupt you. [00:22:02] Speaker 00: I know you're walking through the other arguments that were made in the appellant's brief, and I appreciate your effort to preserve that record. [00:22:08] Speaker 00: Certainly. [00:22:09] Speaker 00: But I did have another question that I wanted to ask you on the search of the phone. [00:22:15] Speaker 00: One of the things I'm struggling with is how to read the affidavit and the warrant together and which way it cuts in terms of resolving this question. [00:22:23] Speaker 00: One of the reasons that Leary seemed to suggest that the warrant was over in addition to being over broadens face was flawed was because there was information that was available that could have been included and the way that Leary identified that was by pointing to what was in the affidavit. [00:22:46] Speaker 00: Why don't we have exactly the same situation here where [00:22:49] Speaker 00: You know, we don't have to speculate about what it is that the government may have known. [00:22:54] Speaker 00: Rather, we look at the affidavit, we see a specific temporal frame, but it's missing from the face of the warrant. [00:23:02] Speaker 00: So can you help me understand how to reconcile all that and which way it cuts? [00:23:07] Speaker 00: Certainly, Your Honor. [00:23:07] Speaker 02: I think Leary is distinguishable for several reasons. [00:23:10] Speaker 02: First, as a note, this is necessarily a fact-specific inquiry. [00:23:15] Speaker 02: And under the totality of the circumstances, I believe we're in a different space here. [00:23:20] Speaker 02: Leary concerned the evidence regarding one particular piece of equipment that was suspected to have been sold to China, basically. [00:23:30] Speaker 02: And it involved the search of an expert control firm. [00:23:34] Speaker 02: Necessarily, in that context, the search warrant provided absolutely no limitations because it allowed for an expansive search regarding [00:23:43] Speaker 02: Again, one piece of information. [00:23:46] Speaker 02: In contrast here, Mr. Reed possessed five tractors over the course of months. [00:23:51] Speaker 02: I think this clearly puts us in the purview of palms and burges where we don't have temporal limitations. [00:23:59] Speaker 02: And I don't believe that Leary created a bright line rule requiring that any time a temporal limitation is available, it must be included. [00:24:09] Speaker 02: It was something that [00:24:10] Speaker 02: the opinion noted as inspiration. [00:24:13] Speaker 00: And I think you're getting to exactly where I'm stuck. [00:24:16] Speaker 00: So if there isn't a per se rule, then what is the principle that guides us in determining whether the question about whether the information was available is answered. [00:24:28] Speaker 00: It is available. [00:24:28] Speaker 00: Correct. [00:24:29] Speaker 00: It's in the affidavit. [00:24:30] Speaker 00: Are you suggesting that under the circumstances of this specific type of offense, no temporal limitation was required? [00:24:40] Speaker 02: Yes, Your Honor. [00:24:41] Speaker 00: OK. [00:24:42] Speaker 00: And tell me, I'm sorry if I'm missing this, but tell me one more time why that is so. [00:24:46] Speaker 02: That is so because this is the type of ongoing crime involving multiple transactions that puts it within the purview of human trafficking, drug trafficking, and child pornography cases. [00:25:01] Speaker 04: You mentioned the keywords in the search that were used by the officers. [00:25:07] Speaker 04: Do you remember what those, can you tell me what those keywords were? [00:25:10] Speaker 02: Certainly, Your Honor. [00:25:12] Speaker 02: I believe, well, I won't recite them all from memory, but I think some of them that were particularly concerning to the majority were words like pig, which could regard a farm animal, or a derogatory suit. [00:25:25] Speaker 02: In this case. [00:25:26] Speaker 02: Oh, in this case. [00:25:27] Speaker 02: I'm sorry, Your Honor. [00:25:28] Speaker 02: No, in this case, I don't believe that there were keyword searches included. [00:25:31] Speaker 04: OK. [00:25:33] Speaker 04: I remember that, and I thought, [00:25:35] Speaker 04: One of you two mentioned keywords, so I got confused. [00:25:39] Speaker 04: OK. [00:25:39] Speaker 02: Keywords were at issue in Armandara's, and those keywords were very broad and did not, in fact, limit the scope of the warrant there. [00:25:45] Speaker 00: What is your best case or cases that help us understand how to view a specific offense as ongoing as opposed to discreet? [00:25:58] Speaker 02: I believe the cases cited in the government's brief, Your Honor. [00:26:01] Speaker 02: That would be Palms, chiefly, in addition to Burgess, [00:26:05] Speaker 02: Brooks and Burke. [00:26:12] Speaker 02: United States versus Christie is also helpful, though I do acknowledge that there was a temporal limit of sorts in that. [00:26:18] Speaker 02: It was an expansive temporal limit. [00:26:23] Speaker 00: So does ongoing conduct just not have any temporal limit? [00:26:27] Speaker 00: I don't believe so, Your Honor. [00:26:29] Speaker 02: And to date, the court has not placed a limit on that conduct. [00:26:33] Speaker 02: Otherwise, we wouldn't have decisions [00:26:35] Speaker 02: Palms and Burgess, which are, in Palms, it's actually less specific than we have here. [00:26:40] Speaker 02: Here we have evidence of a specific crime, whereas in general, we're just talking about human trafficking writ large in Palms. [00:26:49] Speaker 00: But why couldn't the temporal limitation have just been the same that was ultimately in the indictment? [00:26:55] Speaker 02: Because the indictment was actually predicated on a second warrant that was later obtained. [00:27:01] Speaker 02: So the indictment is entirely talking about a separate search warrant. [00:27:12] Speaker 02: There are no further questions on the issue. [00:27:13] Speaker 02: I'd just like to preserve my remaining arguments. [00:27:18] Speaker 02: Regarding the multiplicity argument, I do want to emphasize that Mr. Reed has waived this challenge. [00:27:24] Speaker 02: Federal rule of criminal procedure 12B3B2 explicitly states that an allegation as to multiplicity must be raised pretrial. [00:27:34] Speaker 04: Wait, wait, wait. [00:27:36] Speaker 04: How would he know from the indictment that the images being used for the two charges were identical? [00:27:45] Speaker 04: He could not have raised that issue pre-trial. [00:27:49] Speaker 02: Well, one of the allegations that the appellant raises is that the date range is necessarily the same, and that on its face, it is clear that that indictment implicates multiplicity. [00:28:01] Speaker 02: If that is the case, that issue should have been raised pre-trial, and it is explicitly enumerated in Rule 12B. [00:28:06] Speaker 04: That may be true. [00:28:09] Speaker 04: But here, the prosecution could have resolved that problem by telling the jury, these are the images that were distributed, these were the ones that were possessed, and so there'd be distinct factual bases for the two charges. [00:28:30] Speaker 04: And the defendant would not know that until the close of evidence. [00:28:34] Speaker 04: Am I missing something? [00:28:36] Speaker 02: Your Honor, I respectfully disagree based on the facts of this case and the rule specifically. [00:28:41] Speaker 02: I do believe if we reach the plain error aspect of the argument, then we don't have a factual dispute that's been raised such that the district court could have raised it. [00:28:52] Speaker 02: The point of rule 12 is to allow the district court, who is the fact finder, to vet these multiplicity issues in advance. [00:29:03] Speaker 02: A facial challenge to the indictment on multiplicity grounds could easily have been cured with a bill of particulars, for example, that would have enumerated the specific images of the court. [00:29:13] Speaker 04: When did the defendant first bench in multiplicity? [00:29:15] Speaker 02: On appeal. [00:29:18] Speaker 04: OK. [00:29:21] Speaker 00: And is your argument just that we don't review multiplicity challenges for plain air after the 2014 amendments? [00:29:27] Speaker 00: Is that? [00:29:28] Speaker 00: If they are not raised pretrial, yes. [00:29:30] Speaker 00: If they are not raised pretrial? [00:29:32] Speaker 04: But you've got to concede that sometimes you would not know. [00:29:36] Speaker 04: It could have been raised at the close of evidence saying, look, the prosecution has not distinguished between the two claims. [00:29:44] Speaker 02: May I answer? [00:29:44] Speaker 02: I see that I'm out of time. [00:29:46] Speaker 02: I'll let you guess. [00:29:48] Speaker 02: So under the facts of this case, I don't think that there is an excuse. [00:29:54] Speaker 02: There was ample opportunity at the close of evidence. [00:29:57] Speaker 02: It was not raised. [00:29:58] Speaker 02: But beyond that, [00:30:00] Speaker 04: If the allegation... You said it always has to be raised pre-trial. [00:30:05] Speaker 04: I would think there are issues regarding multiplicity that could not be raised until you saw what evidence was presented. [00:30:12] Speaker 02: As I read the rule, that is what the rule indicates. [00:30:16] Speaker 02: I will not foreclose the possibility that in some world on some particular facts there could be an issue that would be appropriate. [00:30:24] Speaker 04: If there were multiplicity here, what would be the remedy? [00:30:27] Speaker 02: The remedy would be re-sentencing on one of the two counts. [00:30:33] Speaker 02: Since those are concurrent sentences of 210 months, the only difference would be the special assessment. [00:30:40] Speaker 02: And because the special assessment and the restitution obligation under the GVTA. [00:30:46] Speaker 02: So I do acknowledge that it would save Mr. Reed a nominal amount of money. [00:30:54] Speaker 03: Two questions. [00:30:55] Speaker 03: Just one to follow up. [00:30:56] Speaker 03: Why wouldn't the remedy be to vacate the multiplicitous convictions rather than to assume that both are valid and we're going to just remand for resentencing? [00:31:08] Speaker 02: It's a fair point, Your Honor. [00:31:09] Speaker 02: I do think we would reach the same result by vacating one of those convictions, yes. [00:31:13] Speaker 03: Can I ask my second question? [00:31:15] Speaker 03: Yes. [00:31:16] Speaker 03: Now, I want to give you a chance to respond to what defense counsel said in the reply brief on your [00:31:22] Speaker 03: Rule 12 argument. [00:31:24] Speaker 03: She points out, I think accurately, that in the Wende-Urick case, we did address multiplicity. [00:31:32] Speaker 03: We applied plain error, and that was about six years after the 2014 amendments. [00:31:40] Speaker 03: Does the Wende-Urick case foreclose your argument? [00:31:44] Speaker 02: No, Your Honor. [00:31:45] Speaker 02: I pulled the briefs in that case, and actually the United States did not argue that the issue was waived. [00:31:51] Speaker 02: The United States waived their waiver argument, and so it was not properly before the panel. [00:31:57] Speaker 03: All right. [00:31:58] Speaker 03: Thank you. [00:31:58] Speaker 03: Thank you. [00:31:58] Speaker 03: Thanks, Judge. [00:32:11] Speaker 01: I just want to make one point. [00:32:14] Speaker 01: Just that the allegations in the affidavit here give rise at best to probable cause to search for the evidence of five pieces of equipment over the two-month period. [00:32:24] Speaker 01: That there might have been other equipment involved is entirely speculative given the allegations in the affidavit and what was in the affidavit versus what wasn't. [00:32:35] Speaker 01: Speculation does not equate to probable cause. [00:32:38] Speaker 01: The affidavit describes five pieces of equipment found together over two months. [00:32:43] Speaker 01: There was no other equipment reported stolen in the area according to the affidavit. [00:32:46] Speaker 01: There are no allegations about that. [00:32:48] Speaker 01: Mr. Reed was not seen with other unidentified equipment besides these five pieces. [00:32:54] Speaker 01: That's not in the affidavit. [00:32:56] Speaker 04: Your time is up. [00:32:56] Speaker 01: Yeah, my time is up. [00:32:57] Speaker 01: Thank you. [00:32:57] Speaker 04: We ask to reverse. [00:33:00] Speaker 04: Thank you, counsel. [00:33:01] Speaker 04: Case is submitted.