[00:00:00] Speaker 03:
Sorry about that.

[00:00:14] Speaker 04:
Good morning, Your Honors.

[00:00:15] Speaker 04:
May it please the court, Justin Allman for the appellant, Kimberly Ann Tu.

[00:00:19] Speaker 04:
We've raised two issues in this case, a suppression issue and a severance issue.

[00:00:23] Speaker 04:
I want to start with the suppression issue.

[00:00:26] Speaker 04:
This case involves the search of an iCloud account, a cloud-based storage account with the ability to host backups from multiple different electronic devices in addition to a user's email, text messages, location data, photos, you name it.

[00:00:41] Speaker 04:
In all of this court's cases on electronic searches, it has not before dealt with a search for something as broad and all-encompassing as an iCloud account, which makes it all the more concerning that the government was able to target this huge two and a half year reservoir of data with a warrant lacking almost any semblance of particularity.

[00:01:02] Speaker 04:
The warrant in this case allowed the government to search for any violation of one of six broad target offenses, including conspiracy, wire fraud, attempt, money laundering.

[00:01:13] Speaker 04:
These are among the broadest offenses under the United States code.

[00:01:17] Speaker 04:
They are derivative offenses that incorporate other statutes.

[00:01:20] Speaker 04:
As we note in our brief, this warrant would have allowed the government to search for violations of any federal crime.

[00:01:27] Speaker 00:
Let me interrupt for just one minute.

[00:01:28] Speaker 00:
I've got a little question about preservation on this issue.

[00:01:33] Speaker 00:
In the district court, the argument was focused on that there were specific statutes in a specific scheme, but on appeal, it seems to be that even with specific statutes, if the statutes themselves

[00:01:53] Speaker 00:
cover a broad range of criminal activity, that it's too broad.

[00:01:59] Speaker 00:
And I recognize that the district court did rule on the more narrow issue.

[00:02:05] Speaker 00:
And I also recognize that the government seems to have conceded that it's preserved.

[00:02:11] Speaker 00:
But I've got a little question about whether what was argued in the district court and what's being argued before us is the same.

[00:02:18] Speaker 04:
Your I think they are the same in our in the motion to suppress brief defense counsel argued that the search warrant was fatally over broad that it was a general warrant.

[00:02:27] Speaker 04:
And the reason for that was because it was not related to the specific offenses that the government was investigating.

[00:02:34] Speaker 04:
And that's a record volume of three pages one twelve.

[00:02:37] Speaker 04:
And, as you know, the district court recognize that the district court.

[00:02:42] Speaker 04:
The district court passed on this issue as the government acknowledges which preserved it but not only that, the government's counsel also recognize this issue the government in their response brief in the trial court.

[00:02:54] Speaker 04:
made the same arguments that the district court ultimately accepted.

[00:02:57] Speaker 04:
And so both the government's trial counsel and the district court recognized and passed on this issue, preserving it for appeal.

[00:03:06] Speaker 04:
And then as you noted as well, to the extent there would be any argument here that there's been a waiver, the government has noted that this is a potential issue and chose not to raise a waiver or forfeiture.

[00:03:19] Speaker 04:
So they've waived or forfeited the forfeiture, thus preserving this issue for appeal.

[00:03:24] Speaker 03:
Thank you.

[00:03:26] Speaker 03:
Let me skip ahead to the question of, let's assume that we agree with you on the search warrant.

[00:03:34] Speaker 03:
There's the question then of good faith.

[00:03:36] Speaker 03:
And what governmental misconduct is being deterred here given the circumstances of this search and the warrant?

[00:03:46] Speaker 04:
So first of all, the warrant itself is very clearly overbroad if you read through it.

[00:03:53] Speaker 04:
And just want to kind of back up and take this in pieces.

[00:03:58] Speaker 04:
As for the good faith defense, we need to bear in mind that the government bears the burden of proof on that defense.

[00:04:04] Speaker 04:
And many of the factual arguments that they make in their brief about how this search was conducted or what the officers believed or interpreted the warrant,

[00:04:12] Speaker 04:
They didn't make those arguments to the district court and they did not introduce any facts in the record to support those arguments.

[00:04:19] Speaker 04:
In particular, they note in one point that an AUSA reviewed the warrant in this case.

[00:04:26] Speaker 04:
If you go to the record in that, they are relying on one sentence in the warrant application that says, an assistant United States attorney reviewed this warrant application and affidavit.

[00:04:36] Speaker 04:
It's not signed by the AUSA.

[00:04:37] Speaker 04:
We don't have any record in this case as to what that review entailed.

[00:04:41] Speaker 04:
And importantly, the statement says that an AUSA reviewed the warrant application and affidavit.

[00:04:47] Speaker 04:
It very clearly does not say that an AUSA reviewed the warrant.

[00:04:51] Speaker 04:
That is important because the warrant application and affidavit have significant detail that never made it into the warrant itself.

[00:04:58] Speaker 04:
If you read the warrant application, it is very detailed as far as the information the government had.

[00:05:04] Speaker 04:
That did not make its way into the warrant.

[00:05:06] Speaker 04:
There's no record in this case that an AUSA reviewed the warrant.

[00:05:12] Speaker 04:
Other points I want to make on good faith is the government says in this case that

[00:05:16] Speaker 04:
There's no evidence that the officers searched outside of what their probable cause was for the warrant.

[00:05:23] Speaker 04:
The key phrase in that is there's no evidence.

[00:05:25] Speaker 04:
The government, we had a suppression hearing in this case.

[00:05:28] Speaker 04:
The government had the opportunity, they had witnesses on the stand.

[00:05:31] Speaker 04:
They didn't elicit any evidence in this case as to how this search was actually performed.

[00:05:35] Speaker 04:
There's no record on that.

[00:05:37] Speaker 04:
And so, again, this is the government's... Well, two things.

[00:05:40] Speaker 03:
One, isn't there a record about

[00:05:43] Speaker 03:
the effort to do a tank team on this matter?

[00:05:46] Speaker 03:
And doesn't that bespeak good faith?

[00:05:48] Speaker 03:
And also the question of whether the same searcher was involved in actually being an affiant on the warrant.

[00:05:57] Speaker 03:
I think both of those questions are raised here.

[00:05:59] Speaker 04:
Sure.

[00:06:00] Speaker 04:
So there is evidence in the record that they, when they ran across privilege records, they stopped and installed a filter team.

[00:06:06] Speaker 04:
There's no evidence, though, as far as whether they stayed within the scope of their reasonable or the probable cause for the search.

[00:06:12] Speaker 04:
There's no evidence in the record on that one way or the other.

[00:06:14] Speaker 04:
And so, again, that is an issue on which the government bears the burden of proof, and they didn't put any facts in the record on it.

[00:06:20] Speaker 04:
As for whether the same officer was involved at both the execution and applying for this warrant,

[00:06:29] Speaker 04:
That may be true, but the fact here is that the same thing was true in Leary and the same thing was true in the Supreme Court's decision in Groh.

[00:06:37] Speaker 04:
And the court in Groh actually cited that fact as something that cut against good faith because the officer who executed the affidavit and submitted the warrant should know that a warrant this plainly over broad cannot support good faith reliance.

[00:06:52] Speaker 03:
Yes, but as a matter of logic, it also speaks to the fact that the person who did the search knew exactly what they should be looking for if the affidavit itself had information and that supported the investigation that was underway, right?

[00:07:07] Speaker 04:
Well, I think that's one possible inference or argument you could make from it, but the Supreme Court in Grove dealt with the exact same factual circumstances and inferred from that the opposite inference.

[00:07:19] Speaker 04:
We don't have any evidence in this record as to how the officers actually went about conducting this search, whether they stayed within the scope of their reasonable suspicion.

[00:07:27] Speaker 04:
That's an issue on which the government has a burden by preponderance of the evidence, and they've not put any evidence in the record on that.

[00:07:32] Speaker 02:
Counsel, can I ask you about going back to the particularity requirement

[00:07:36] Speaker 02:
You obviously argued that the amount of time frame of this iCloud account that was subject to search and the broad nature of the offenses.

[00:07:45] Speaker 02:
But shouldn't we consider the nature of the offenses in the context of those offenses that are under investigation here?

[00:07:54] Speaker 02:
Because this is a multi year conspiracy where the evidence is likely to be communications, transactions, or what we call a paper case.

[00:08:04] Speaker 02:
Doesn't that matter in how we think about

[00:08:06] Speaker 02:
the particularity requirement here.

[00:08:09] Speaker 04:
I don't think so, Your Honor, because if we go back to Leary, that also was a paper case.

[00:08:14] Speaker 04:
And in that case, the government executed a warrant for the search of an office space, and it was limited to violation of two federal export statutes.

[00:08:22] Speaker 04:
And even though those statutes are far narrower than any of the target offenses we're dealing with here, in particular the conspiracy statute, the court still said that those were the sort of broad federal offenses that could not particularize a warrant.

[00:08:34] Speaker 04:
And crucially, the court went further and said that any reasonable officer would have known that.

[00:08:38] Speaker 04:
And in that case, the court was particularly concerned that the warrant application had significant additional detail that could have been used to draw down the scope of the warrant.

[00:08:51] Speaker 04:
That is the same circumstance we're dealing with here.

[00:08:53] Speaker 04:
The government, if you read their unincorporated warrant affidavit application, it contains significant additional detail that they could have used to particularize this warrant.

[00:09:04] Speaker 04:
What's an example?

[00:09:05] Speaker 04:
How could it have been limited?

[00:09:06] Speaker 04:
It could have been limited.

[00:09:08] Speaker 04:
They could have included affirmative language, affirmatively limiting it to a conspiracy against National Air Cargo.

[00:09:13] Speaker 04:
If you look at the Warren application, they had significant information at that time as to who these participants were in this conspiracy.

[00:09:19] Speaker 04:
They could have limited to communications between

[00:09:22] Speaker 04:
My client and Mr. Tu, my client and John Ulos, my client and Mike Myers, they had references to specific bank accounts.

[00:09:31] Speaker 04:
They had references to specific phone numbers, to specific emails that were exchanged.

[00:09:37] Speaker 04:
There were just a wealth of data in there, a wealth of information in there that they could have used to draw down significantly the scope of this warrant to the offenses for which they actually had probable cause.

[00:09:48] Speaker 00:
The government repeatedly argues throughout its brief that the warrant incorporated the affidavit by reference.

[00:09:58] Speaker 00:
Do you agree with that statement?

[00:10:00] Speaker 04:
That is just completely false, Your Honor.

[00:10:03] Speaker 04:
The citation that they point you to is to the warrant

[00:10:06] Speaker 04:
application, which incorporates the attached affidavit.

[00:10:09] Speaker 04:
If you go to the warrant itself, it does not have any language of incorporation.

[00:10:13] Speaker 04:
This court in Leary, the Supreme Court in Grove said that if you're going to incorporate attached affidavit, that incorporation language has to be in the warrant and it's not here.

[00:10:28] Speaker 04:
Unless the court has any further questions on the warrant piece, I wanted to transition.

[00:10:32] Speaker 03:
What page are you talking about?

[00:10:34] Speaker 03:
And when I look at the search and seizure warrant, it speaks, it uses the language incorporated.

[00:10:39] Speaker 03:
I mean, what page of the record are you talking about?

[00:10:45] Speaker 04:
Your honor, give me one second, please.

[00:10:47] Speaker 03:
Search and seizure warrant, I mean.

[00:10:49] Speaker 04:
Is this record volume three, pages 169?

[00:11:01] Speaker 04:
That's the warrant application.

[00:11:03] Speaker 04:
So the application for a search warrant does include incorporation language.

[00:11:06] Speaker 04:
The search warrant includes language of incorporation, but it's incorporating the attached A and B, which states the place to be searched and the things to be seized.

[00:11:15] Speaker 04:
But it does not include language in the warrant itself incorporating the affidavit that was attached to the application.

[00:11:24] Speaker 03:
All right.

[00:11:25] Speaker 03:
I get your point.

[00:11:27] Speaker 03:
Let's let's go on then to the question of severance and on the question of severance.

[00:11:34] Speaker 03:
I have a preservation question myself I mean on the day of trial the district court ordered on the first day of trial the district court ordered.

[00:11:43] Speaker 03:
the filing of simultaneous briefs on the severance issue, and ultimately Mr. Tu did file a brief, which the government responded to.

[00:11:51] Speaker 03:
Why didn't that order, as I read the record, seem to have clearly applied to your client as well, and your client did not file a brief?

[00:12:00] Speaker 03:
And therefore, why didn't your client waive that issue?

[00:12:04] Speaker 04:
Your honor, at the time, if I'm remembering from the record, I think at the time that the court made that order, that was right after my client had made statements that were antagonistic to Mr. Two.

[00:12:14] Speaker 04:
But Mr. Two at that point had not made or unveiled this antagonistic defense towards my client.

[00:12:19] Speaker 04:
So, there's no basis.

[00:12:21] Speaker 04:
My client can't move for a severance based on antagonistic fence based on the fact that she's making arguments that are antagonistic to her husband.

[00:12:28] Speaker 04:
That might be an argument for him, but it's not an argument for her.

[00:12:31] Speaker 03:
As soon as... Well, the record seemed to clearly imply it said simultaneous briefs, and the government responded to

[00:12:38] Speaker 03:
briefed and responded.

[00:12:41] Speaker 03:
So it wasn't simultaneous on the government's part.

[00:12:44] Speaker 03:
I mean, I won't pursue it at length because obviously it's about a record read.

[00:12:48] Speaker 03:
But I mean, it seemed to me that the court was speaking to both of the defendants.

[00:12:53] Speaker 03:
So you're saying that at that point, the defendant didn't have any severance issue on the table at the time that order was made?

[00:13:02] Speaker 04:
I don't have that specific order right in my mind of the record.

[00:13:06] Speaker 04:
But if it occurred at the time before Mr. Tu made their cross-examination of Mr. Ulos, then I don't think until that cross-examination happened, I don't think my client had a basis for severance.

[00:13:18] Speaker 00:
But what about the proffers?

[00:13:21] Speaker 00:
I mean, all the way back at the proffers, you had them pointing fingers at each other and you had the government and the district court repeatedly warning both.

[00:13:32] Speaker 00:
of the defendants that thi

[00:13:36] Speaker 04:
So on that point, Your Honor, the proffers, there are statements in there where both individuals are making statements that incriminate both of them together.

[00:13:44] Speaker 04:
But you can read those proffers, and I encourage you to read them.

[00:13:47] Speaker 04:
There is nothing in there where Mr. Tu gives even the slightest hint that he was going to unleash this antagonistic defense the way he did at trial.

[00:13:55] Speaker 04:
Nowhere in there is there any statement that his wife controlled and manipulated him into carrying out this alleged fraud.

[00:14:02] Speaker 04:
It is just a completely different story from the proffers to what was eventually portrayed at trial.

[00:14:09] Speaker 04:
As for the court's warnings, there were warnings on the record that it's generally ill-advised for two defendants to have the same counsel.

[00:14:18] Speaker 04:
That's about the extent of it.

[00:14:20] Speaker 04:
There was some reference that their defenses might clash, but that doesn't make a severance defense based on antagonistic defenses then reasonably available.

[00:14:31] Speaker 03:
What do you do with Jones?

[00:14:32] Speaker 03:
I mean, why doesn't Jones completely undercut any sort of notion of antagonistic defenses in this case?

[00:14:39] Speaker 04:
Sure, Your Honor.

[00:14:40] Speaker 04:
So in Jones, that case involved a boyfriend and girlfriend that were involved in a bank fraud scheme.

[00:14:46] Speaker 04:
The girlfriend in that case made two brief comments.

[00:14:50] Speaker 04:
Her attorney made two brief comments that suggested that the husband was the orchestrator of the scheme.

[00:14:56] Speaker 04:
They made a statement in opening statements and a statement in closing.

[00:14:58] Speaker 04:
There was no evidence elicited by the girlfriend's attorney during the course of the trial.

[00:15:05] Speaker 04:
It was those two brief statements, and the court looked at that in context and said that really wasn't the core of her defense.

[00:15:10] Speaker 04:
Here, the record is entirely different with how pervasive and antagonistic Mr. Tu's defense was.

[00:15:16] Speaker 03:
to my client.

[00:15:16] Speaker 03:
Well, I can see that you would want to focus on that aspect of it, but the point was the court talked legally about whether the core of the defenses were different.

[00:15:26] Speaker 03:
In other words, whether they in some sense would negate each other and the fact that Mr. Tu would say that his wife was the ringleader and his wife would say that no, it wasn't me.

[00:15:38] Speaker 03:
There wasn't anything as a matter of law that would be antagonistic about those two things.

[00:15:46] Speaker 03:
Sure, Your Honor, and I just want to note that I am aware.

[00:15:50] Speaker 04:
Your Honor, in that case, in our case, it's not just that Mr. Tu was saying my client was the ringleader.

[00:15:55] Speaker 04:
He is saying that my client controlled and manipulated him.

[00:16:01] Speaker 04:
and to carrying out this alleged scheme for her benefit to feed her uncontrollable gambling addiction and lavish spending habits.

[00:16:09] Speaker 04:
We don't agree with that, but that is it.

[00:16:11] Speaker 04:
He is putting on her for coercing him into this conspiracy.

[00:16:16] Speaker 00:
Well, but his main defense was that the government failed to meet its burden because Mr. Youlos was not credible.

[00:16:26] Speaker 00:
I mean, that was his main defense, right?

[00:16:29] Speaker 04:
I don't believe that's quite right.

[00:16:31] Speaker 04:
That was certainly part of it, especially to the extent Mr. Ulos was using the term conspiracy throughout the trial.

[00:16:37] Speaker 04:
But the core of his defense, if you read his closing summation to the jury, the last slides that they put up there, it's here's the story behind the indictment.

[00:16:47] Speaker 04:
We told you at the beginning to look for the story behind the indictment.

[00:16:50] Speaker 04:
Here's the story.

[00:16:50] Speaker 04:
The story is that Mrs. Tu has been controlling and manipulating her husband into this scheme.

[00:16:55] Speaker 04:
And so, while those two theories that Mr. Ulofs was not entirely truthful and that Mrs. Tu controlled and manipulated her husband, those two things aren't mutually exclusive.

[00:17:07] Speaker 04:
Mr. Tu pursued both of those defenses.

[00:17:09] Speaker 04:
And his main theme to the jury in closing was that his wife manipulated him into this scheme.

[00:17:17] Speaker 03:
Thank you, counsel.

[00:17:18] Speaker 03:
Thank you.

[00:17:22] Speaker 03:
We'll hear from the government.

[00:17:26] Speaker 01:
Morning, your honors, and may it please the court, Rajiv Mohan for the United States.

[00:17:31] Speaker 01:
I'd like to start with suppression and particularly some of the points on good faith.

[00:17:37] Speaker 01:
I want to start particularly with what the government produced below.

[00:17:41] Speaker 01:
And I think it's worth noting that the suppression motion here arose in a slightly odd posture because the government started execution of the warrant.

[00:17:51] Speaker 01:
paused execution on account of the privilege concerns, and execution remained paused through litigation on the suppression motion.

[00:18:00] Speaker 01:
Now, the government did present evidence regarding the execution up to that time, and I would point to pages 387 to 88 of Volume 1, where the government described that the agent conducted a focused search

[00:18:14] Speaker 01:
for communications between the named defendants and suspected co-conspirators.

[00:18:20] Speaker 01:
Now, execution only resumed after the district court had already upheld the warrant.

[00:18:25] Speaker 01:
So the government really had no occasion or reason to provide further evidence concerning the subsequent execution.

[00:18:33] Speaker 01:
I would note that Ms.

[00:18:35] Speaker 01:
Tu did not ever challenge that

[00:18:37] Speaker 01:
subsequent execution as exceeding the scope of the warrant as construed by the district court to be limited to the specific conspiracy to defraud national.

[00:18:49] Speaker 00:
Do you now concede that the warrant is overbroad?

[00:18:53] Speaker 01:
We do not, Your Honor.

[00:18:56] Speaker 01:
We do believe that the warrant was limited to

[00:19:00] Speaker 01:
a specific conspiracy to defraud national.

[00:19:03] Speaker 01:
Um, I think even if the court disagrees with us on that point, I would suggest, how do you get that from the language of the warrant?

[00:19:10] Speaker 00:
I mean, it lists, I think there's four separate categories and only one of them is limited to, uh, air national.

[00:19:21] Speaker 01:
Sure.

[00:19:21] Speaker 01:
And I think I would view that language as providing a contextual indication that the target offenses

[00:19:28] Speaker 01:
um, do relate to that conspiracy.

[00:19:31] Speaker 01:
And I think that's consistent with the approach this court has taken to interpreting warrants where I think it has been able to discern limits from language that might not appear so limiting at first glance.

[00:19:44] Speaker 01:
And, you know, I would say the case like Wagner, for example, where you had

[00:19:47] Speaker 01:
16 categories subject to seizure, some of which contained an expressed limitation to child pornography, some of which did not.

[00:19:56] Speaker 01:
And even for the ones that did not, this court was able to discern a nexus to child pornography, even though I think one might reasonably be able to see the inclusion of an expressed nexus as to some categories to imply the exclusion of one as to others.

[00:20:11] Speaker 00:
And at a minimum- The Wagner affidavit, it didn't use the word including.

[00:20:18] Speaker 00:
And that's part of your problem here is that you've got these categories and then you've got this separate category where it is limited expressly to this particular conspiracy.

[00:20:33] Speaker 00:
I mean, I see some pretty significant differences between the warrant in Wagner and the one here.

[00:20:39] Speaker 01:
And I think at a minimum, I think both the including language and

[00:20:46] Speaker 01:
the affidavit demonstrate an intent to limit the warrant to the specific conspiracy, which I think supports good faith.

[00:20:54] Speaker 01:
But I think even if the court were to disagree that the warrant is limited to the specific conspiracy, I do think that target offenses combined with a date range does render the warrant sufficiently particular given the nature of the conduct here.

[00:21:10] Speaker 01:
And I think that's because even if you had a further limitation

[00:21:15] Speaker 01:
that limited the war into evidence related to the conspiracy to defraud national, that would still raise the question of what evidence is related to the conspiracy.

[00:21:25] Speaker 01:
And, you know, this court has recognized that the purpose of the particularity requirement is to give agents, executing agents, practical guidance about what can and cannot be seized.

[00:21:37] Speaker 01:
And, you know, to sort of illustrate that point, Ms.

[00:21:39] Speaker 01:
Tu was involved in an ostensibly separate

[00:21:43] Speaker 01:
cryptocurrency Ponzi scheme.

[00:21:46] Speaker 01:
And yet it was the case that she often needed money from national to fund that scheme.

[00:21:51] Speaker 01:
So I think even offenses that might appear to be separate would be relevant to the conspiracy to defraud national.

[00:21:59] Speaker 01:
And I think that reflects this court's observation in a case like Cooper, which is when we're talking about these sorts of complex broad

[00:22:07] Speaker 01:
financial crimes, it is more difficult to define the item subject to seizure with particularity.

[00:22:14] Speaker 02:
But what about evidence of, say, motive?

[00:22:17] Speaker 02:
The warrant allowed the agents to go through this warehouse of data and look for evidence of motive.

[00:22:23] Speaker 02:
Well, really, couldn't that be anything?

[00:22:25] Speaker 02:
And what limiting principle is that, particularly when you're talking about communications between a married couple, where the motive, as it was presented, could have been their love for each other?

[00:22:34] Speaker 02:
Does that allow agents then to pick out

[00:22:36] Speaker 02:
you know, every communication of intimacy between the couple?

[00:22:40] Speaker 01:
Well, I think, Your Honor, this Court has recognized that when we're talking about electronic warrants, there may be no practical substitute for searching in many folders or applications on a phone.

[00:22:53] Speaker 01:
And I think this Court has also recognized that insofar as agents come across personal information, that is more just the nature and the ease of hiding electronic information.

[00:23:03] Speaker 01:
And I think, you know, again, even under a

[00:23:06] Speaker 01:
warrant limited to the specific conspiracy or communications between the twos, which I think Ms.

[00:23:12] Speaker 01:
Tu concedes would be particular, agents still would have come across those sorts of communications because they were entitled to look anywhere evidence might reasonably be found.

[00:23:23] Speaker 01:
So I think that regardless of how the warrant was framed, agents were going to have to look through Mr. and Ms.

[00:23:31] Speaker 01:
Tu's messages.

[00:23:33] Speaker 03:
I didn't understand that to be Judge Federico's point.

[00:23:37] Speaker 03:
I mean, what I understood the point would be there's a difference between going through a folder and seeing something and saying, oh, that's irrelevant, just like somebody would do a minimizing in a Title III.

[00:23:47] Speaker 03:
There's a difference between that and studying it, looking at it, and cataloging it as evidence.

[00:23:53] Speaker 03:
I mean, the level of privacy invasion involved in those two different scenarios is material, right?

[00:24:02] Speaker 01:
I'm not sure it is.

[00:24:03] Speaker 01:
I mean, I think agents would in either case have to sort of make the determination.

[00:24:08] Speaker 01:
And, you know, I think it's worth noting that they're doing this at a relatively early stage in the investigation.

[00:24:14] Speaker 01:
So they're going to have to make those judgment calls and determine whether it is relevant to the conspiracy, even if the warrant is that limited.

[00:24:23] Speaker 00:
What do we do with VOS?

[00:24:27] Speaker 00:
We've got a decision that says that 18 USC section 371, which is one of the target offenses here, is not enough to limit a warrant from being overly broad.

[00:24:41] Speaker 00:
I mean, you've got, I think, five other target offenses plus the one we've already said is not a sufficient limitation.

[00:24:52] Speaker 01:
Sure.

[00:24:53] Speaker 01:
And I think the salient point is that in Voss, the only statute listed was the conspiracy statute, whereas here you have it cited alongside the other statutes Your Honor mentioned.

[00:25:05] Speaker 01:
And I think read in context, the conspiracy statute is a reference to conspiracies related, conspiracies essentially to violate those other statutes.

[00:25:15] Speaker 01:
And I do think that is a material distinction.

[00:25:17] Speaker 01:
And I think the sort of language that Ms.

[00:25:20] Speaker 01:
Tu says the Warren should have had here that

[00:25:23] Speaker 01:
You know, the warrant was limited to violations of Section 371, but only if the underlying offense was these other statutes is sort of the hyper-technical language this court has said is not required.

[00:25:36] Speaker 01:
I would also like to address Leary, since Ms.

[00:25:41] Speaker 01:
Chu relies heavily on that case.

[00:25:43] Speaker 01:
And I would note that at

[00:25:45] Speaker 01:
846F2, page 6604 of Leary, the court talks about ways the warrant there could have been made for a particular.

[00:25:55] Speaker 01:
And one of those ways was a time period limitation.

[00:25:59] Speaker 01:
And I think that is a strong indication that the warrant here was sufficiently particular, or at a minimum that Leary does not preclude application of the good faith exception.

[00:26:10] Speaker 03:
What is your and as it relates to the good faith exception, what is your strongest authority that would indicate that the officers proceeded here with good faith?

[00:26:20] Speaker 03:
I mean, what case would you look to as your bell star if you needed to?

[00:26:26] Speaker 01:
I'm not sure any case is factually on point.

[00:26:31] Speaker 01:
I do think a case like Burgess or Otero contain all the general principles which we think are applicable here, namely

[00:26:40] Speaker 01:
fairly detailed affidavit, review by a prosecutor, evidence in the record of narrow execution, and then, you know, just the distinctions between Leary, which I think

[00:26:54] Speaker 01:
Ms.

[00:26:54] Speaker 01:
Tu really hangs her hat on in terms of arguing that the good faith exception does not apply.

[00:27:00] Speaker 01:
I do want to just clear up one factual point on good faith.

[00:27:04] Speaker 01:
The officer who executed this warrant was not the same officer who obtained this particular warrant, but the executing agent did obtain a number of other warrants around the same time, which contained a similarly detailed affidavit, and we've offered that

[00:27:20] Speaker 01:
citation in our answer brief, but it was not, in fact, the same agent who obtained this warrant that executed her.

[00:27:27] Speaker 03:
But she wasn't... Okay, so the executor was which one?

[00:27:31] Speaker 03:
Anderson?

[00:27:33] Speaker 01:
Special Agent Palmer was the executor.

[00:27:35] Speaker 01:
Special Agent Anderson was the one who obtained the warrant.

[00:27:38] Speaker 02:
Okay.

[00:27:39] Speaker 02:
Counsel, what do you do with the incorporation argument?

[00:27:42] Speaker 02:
Your response brief says that the warrant incorporated the affidavit.

[00:27:47] Speaker 02:
That language seems to be absent from the warrant.

[00:27:49] Speaker 02:
What do you say to that?

[00:27:50] Speaker 01:
Yeah, I think that's probably a fair point on further reflection.

[00:27:54] Speaker 01:
I would note that the magistrate judge signed the application and the affidavit.

[00:27:58] Speaker 01:
So I think it is one sort of document, at least from the agent's perspective.

[00:28:04] Speaker 01:
But even for purposes of good faith, this court has held that an unincorporated affidavit can support good faith.

[00:28:11] Speaker 01:
And we believe that it does so here.

[00:28:15] Speaker 01:
Unless there are any further questions on suppression, I would like to turn to severance briefly with my remaining time.

[00:28:23] Speaker 01:
And I really want to focus on prejudice because I think that is where Ms.

[00:28:28] Speaker 01:
Tu's claim fails on the merits for the most straightforward reasons.

[00:28:32] Speaker 01:
I think it remains the case that she has not identified any evidence whose admissibility turned on the joint nature of the trial.

[00:28:41] Speaker 01:
And insofar as she relies on

[00:28:43] Speaker 01:
the more general notion stated in a case like Zafiro that the jury's ability to reach a reliable verdict was undermined.

[00:28:51] Speaker 01:
I would note, not only did the district court give a limiting instruction, there's evidence that the jury followed that instruction.

[00:28:58] Speaker 01:
And that's specifically count 47 of the indictment, the verdict for which appears at pages 942 to 943 of volume two of the record.

[00:29:09] Speaker 01:
And that was a money laundering count where the jury

[00:29:12] Speaker 01:
acquitted Ms.

[00:29:13] Speaker 01:
Tu but convicted Mr. Tu, and I think that is as clear an indication as any that the jury followed the district court's instructions and was able to assess the evidence against each defendant separately.

[00:29:27] Speaker 01:
I do also want to address the question of mutual antagonism, and I would dispute the notion that Mr. Tu, that is, ever admitted to committing the fraud or

[00:29:41] Speaker 01:
argued that his wife coerced him into doing so.

[00:29:44] Speaker 01:
I don't think his defense was ever as clear as that.

[00:29:47] Speaker 01:
He certainly did cite Ms.

[00:29:49] Speaker 01:
Tu's influence, but I want to say a few things about that.

[00:29:52] Speaker 01:
The first is that I don't think it was the core of his defense.

[00:29:55] Speaker 01:
I think if you look at Mr. Tu's closing PowerPoint, which appears at

[00:29:59] Speaker 01:
page 1205 of volume two, he devoted two slides to Ms.

[00:30:05] Speaker 01:
Tu's influence out of 27 slides total.

[00:30:08] Speaker 01:
And you can compare that to 12 slides attacking Mr. Yolos alone.

[00:30:13] Speaker 01:
Moreover, when Mr. Tu did talk about his wife's influence, it was as much her influence over others than it was her influence over him.

[00:30:22] Speaker 01:
Indeed, the only actual evidence he cited in closing regarding her

[00:30:28] Speaker 01:
influence over him was a car ride where she called him a horrible father and a monkey and a text message where she said, figure out if you want to be in this family.

[00:30:38] Speaker 01:
And I think that is hardly a sort of evidence that supports a coercion defense, which is one of many reasons why Mr. Two did not in fact advance such a defense.

[00:30:49] Speaker 00:
Were the defenses mutually antagonistic under Jones?

[00:30:54] Speaker 01:
I don't think so, Your Honor.

[00:30:55] Speaker 01:
I think that in Jones, you had the same sort of finger pointing you have here.

[00:31:01] Speaker 01:
You specifically had one defendant saying the other one was the mastermind and exercised some measure of control.

[00:31:07] Speaker 01:
And I think you have the exact same thing here.

[00:31:09] Speaker 01:
And I would also point to a case like United States versus Lynn, where you had both sides pointing the fingers at each other.

[00:31:16] Speaker 01:
And I don't think that

[00:31:17] Speaker 01:
the twos offered anything more than that in terms of their antagonism.

[00:31:22] Speaker 01:
This is not a case where one of them raised, for example, an affirmative defense, which was directly and logically antagonistic.

[00:31:32] Speaker 02:
Counsel, what's your view on how we think about whether the basis of a motion to sever is reasonably available to a defendant before trial?

[00:31:42] Speaker 01:
Sure.

[00:31:43] Speaker 01:
This court has not interpreted that phrase before.

[00:31:47] Speaker 01:
In terms of authority, I think the application notes to the rule talk about whether the information needed to raise the claim is available.

[00:31:57] Speaker 01:
I also think the word reasonably implies some measure of reasonable foreseeability.

[00:32:03] Speaker 01:
And I think, given the circumstances here, that was the case.

[00:32:08] Speaker 01:
Not only did Ms.

[00:32:10] Speaker 01:
Tu have access to Mr. Yolos' statements, there was also this long history regarding

[00:32:16] Speaker 01:
um, joint and separate representation, which I think raised a very real prospect of antagonism, um, especially once the twos received separate counsel.

[00:32:26] Speaker 01:
And in that regard, you know, I think if you look at the antagonistic, but I say my time is up, if I may just finish my thought briefly, um, if this court looks at the antagonistic defenses cases, um, that the party site on the merits, most of them involve pretrial motions.

[00:32:43] Speaker 01:
And I think

[00:32:43] Speaker 01:
That's an indication that the rule does not operate the way Ms.

[00:32:46] Speaker 01:
Tu suggests that it does in practice.

[00:32:51] Speaker 03:
Anything further?

[00:32:52] Speaker 03:
Thank you, Council, for your fine argument.

[00:32:55] Speaker 03:
Case is submitted.