[00:00:00] Speaker 02:
Case number 22-3025, United States of America versus Edward McGruder, appellant.

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Mr. Sirbe for the appellant, Mr. McGovern for the appellee.

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Mr. Sirbe, good morning.

[00:00:16] Speaker 04:
Good morning, Judge Henderson.

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May it please the court, Bruce Sirbe appearing for appellant Edward McGruder.

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I'd like to reserve three minutes of my time.

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And as far as a roadmap, I'd like to accomplish three things with my opening.

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First, I'd like to emphasize Mr. McGruder's argument relating to the liberal standard for withdrawal of his guilty plea under Rule 11D based on the warrantless search of his backpack where heroin was found, which argument his attorney missed and to which this

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which to this day, the government has offered no evidence establishing a justification for this warrantless search.

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Second, I would like to turn to the Louisiana warrant that we've raised.

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I'd like to disclose, under my duty of candor to the court, new information that the government has brought to my attention just in the past few days that could be seen to undercut appellant's argument about the Louisiana warrant.

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And third, I'd like to argue to you, notwithstanding this new information that Mr. McGruder deserves to withdraw, his guilty plea based on a defective Louisiana warrant and his counsel's failure to raise that below, or at least get a remand to develop the record.

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So starting on the first point, the backpack.

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The government has never offered evidence justifying the warrantless search of Mr. McGruder's backpack

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and his counsel who advised his guilty plea was constitutionally deficient in failing to pursue a motion.

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And the district court abused discretion in denying his chance to withdraw his guilty plea and to pursue and explore suppression of the backpack search.

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There were in this case no facts showing that agents were already in the process of arresting

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for a drug conspiracy when they searched his backpack.

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It would be unprecedented and this would let loose frankly laziness and utter disrespect for the warrant requirement if this case went the government's way.

[00:02:37] Speaker 01:
When you say that there's no facts showing that the agents already knew something with the

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at the specific time of searching the backpack.

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Are you suggesting that they needed to have told Mr. McGruder right then and there?

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Or what are you getting at with respect to when someone should have known about that?

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I'm sorry, Judge Childs.

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What I was trying to say is that the agents were not already in the process of arresting Mr. McGruder when they did the backpack search.

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It's not what they knew.

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That's not the issue that I'm pointing to right now.

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It's what they were doing.

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Agents were not already in the process of arresting Mr. McGruder.

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Therefore, you cannot bring in the search incident to arrest Doctrine.

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which is exactly what the district court agreed with the government about that justified the warrant search.

[00:03:31] Speaker 01:
And what about the months long ongoing investigation that was occurring in Louisiana that brought us forward to that date, as well as the various warrants in that regard?

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That did not create probable cause for the arrest on a drug distribution and possession with intent to distribute charge, which is exactly the only reason that agents arrested Mr. McGruder after searching his backpack.

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What you just mentioned had to do with a drug conspiracy in several months prior.

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Now, what agents really did is they wanted to search Mr. McGruder's backpack.

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They were not in the process of already arresting him for a drug conspiracy, which is what the government now seeks to do to bring in the search incident to arrest the doctrine.

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So you're saying that despite that they had all this information, meaning the Louisiana contingency of police officers, investigators, et cetera, knew that Mr. McGruder was making these trips from DC to New York and that on that particular day,

[00:04:40] Speaker 01:
this trip was consistent with the information that they had previously had, that you're saying that these agents did not have any of that information available to them, despite that this particular trip was similar to other trips that he had made that they were aware of?

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No, Judge Childs, I'm not saying that.

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I'm saying that they did not have probable cause to arrest the defendant for a drug distribution charge or a drug possession with intent to distribute

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which is what they actually arrested him for.

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They also do not get to use the search incident to arrest doctrine, which is an exception to the warrant requirement based upon this drug conspiracy evidence that they had accumulated.

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Even if they start out with whatever is part of the months long investigation and they have an ability to arrest based on the fruits of that particular investigation for a specific charge,

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but then they come upon him and there's something else they see.

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Are you telling me that they can't arrest for something different?

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Yes, Your Honor.

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There was no probable cause at that point for them to arrest based upon possession with intent to distribute.

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And cases cited by the government for the proposition that they can still use the search incident for arrest doctrine are distinguishable.

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They're distinguishable because of what I started saying

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which is that agents were not already in the process of arresting the defendant for a drug conspiracy when they searched his backpack.

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Therefore, that line is irrelevant.

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And I'll move off of this, but I'm still trying to get where are you getting that agents were not in the process of arresting him when they are there

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apparently based on information that they've had in Louisiana that is consistent on that day with all of the same information from before.

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So where are you getting that they were not there that day to do the same thing, that something's compatible with what was going on in Louisiana?

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Well, my point is that there was absolutely no evidence in the record ever to this day that they were there to arrest him on a drug conspiracy charge supported by the evidence that you're referring to.

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They were not doing that.

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At least there's no evidence in the record that they were doing that.

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Rather, the only evidence in the record is the complaint affidavit of one of the arresting agents who said that he gets off the bus, they search his backpack, and then they arrest him.

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So there's absolutely nothing entered into the record by the government supporting this idea that they were actually there to arrest him on a drug conspiracy charge.

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What's that?

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Could they have arrested him on a drug conspiracy?

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Did they have probable cause for that?

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They did have probable cause for months old drug conspiracy.

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I'm not asking an agent, I'm asking you just an answer to the question, direct question.

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Could they have arrested, they could have arrested.

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So there's no question that they could have arrested him right then and there.

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They could have, but they weren't going to until they found the drugs pursuant to the search.

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That's a lot of subjective intent that we don't normally get into in probable cause inquiries.

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So if probable cause existed as Judge Childs has been discussing with you to arrest him, then there was cause to do a search, incident to arrest.

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And we have case laws to many other courts saying that

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The before or after doesn't matter as long as they are very proximate in time.

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And if you agreed that he had probable cause, what is your best case that the probable cause has to be for the specific crime for which he is subsequently then charged?

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Your Honor, because in the brief that we filed and the reply in the opening brief, we distinguish all those cases that you're referring to.

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And the Rawlings case is distinguishable.

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There, the defendant had already confessed to a crime by the time the search was made, that the police, based on that confession.

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I understand.

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You agree that they had probable cause to arrest and therefore search at the time they approached him and took his backpack.

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They already had all of that.

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And I appreciate the careful distinctions in your brief from these other cases.

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I'm just asking, what's your best case?

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that since they had probable cause to arrest and therefore search, that somehow dissipates or is no longer sufficient because of their subjective intent to arrest for a different.

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Because, Your Honor, that makes a difference.

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The intent of the officer makes a difference in all these cases.

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They're in this line of cases that the government now wants to rely on.

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And so if you read Rawlings, if you read Powell,

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If you read the other cases that we carefully go through, it does matter what evidence there is in the record of what the officers had been doing before they and what they had been going to arrest the person for.

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So it's absolutely essential.

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And the distinction that I'm pointing out is critical.

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All the government had to do below.

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We would have to adopt a subjective intent

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test for, to write an opinion for you, we would have to say for these purposes.

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You want to do a search and then arrest.

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You want to reverse the order, then subjective intent is controlling.

[00:10:19] Speaker 04:
Your Honor, I think actually you'd have to do the opposite, which is create a whole new layer of exception to the doctrine that you need a search warrant.

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And if you don't, you can do a search incident to arrest.

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Now there's this line of cases about the exact timing of events.

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This case would push that and extend that way too far, Your Honor, by disregarding what the officers were intending to do before the search.

[00:10:47] Speaker 03:
You keep saying intent.

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So there would have to be a subjective intent element to the test that you would want us to address.

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Yes, Your Honor.

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And in these other cases, the record below in the district court had been fully developed so that you could have an exploration of what the officers were actually doing and what they were thinking and why they pulled someone over.

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why they searched somebody, why they had detained somebody.

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So this case is exceptional here because there's the only factual, the only facts in the record go the other way.

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They go, they go Appellant McGruder's way, which is to say that the search appears to have been triggering the arrest and not some imminent arrest triggering the search.

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And that makes all the difference in the world because search incident to arrest exception is based upon

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things like danger to the police officers.

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They're about to make an arrest.

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And so even though they formally do it a little bit later, they still have the search incident to arrest doctrine available to protect themselves.

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So rather than us on the appellate side adding a new requirement, it's actually would be just loosening

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this doctrine that comes out of cases like Rawlings and Powell and Bookhart.

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These are all distinguishable, the reason that I've stated.

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So you had information about the Louisiana warrant argument as well?

[00:12:11] Speaker 04:
Yes, Your Honor.

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First of all, the government informed me a few days ago that, in fact, the first counsel for Mr. McGruder did receive the Louisiana warrant prior to the plea.

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Now, we would still say, of course, that there's an argument there for appellant

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I just want to say that there is a big difference between Mr. Crawley, who is the court appointed counsel who advised the guilty plea receiving the 2018 Louisiana search warrant from the government on the one hand and on the other actually reading it and actually exploring the issues presented by that Louisiana warrant.

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So we think that it's not as I put it in the brief that

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that Mr. Crowley never got the warrant from the government, but it's still the case that he evidently didn't do anything with it, maybe didn't even read it, and that new counsel came into the case not knowing, not having the warrant and needing to get it later.

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Now, just as to the point that the Louisiana warrant matters, I think that it hinges

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terms of the court's jurisdiction to issue the warrant on this proposition, that there was a connection between Mr. McGruder and the jurisdiction of Louisiana, and that ultimately there's somebody in Columbia who was the source of both Mr. McGruder's conversations and the drugs in Houston and Louisiana.

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The whole affidavit talks about there's multiple people involved and it seems to be focused on

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delivery of drugs into Louisiana.

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And this other person shows up, Tony, with this phone number.

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And probable cause is not a super high standard.

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It's a substantial standard.

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But you can have probable cause, and it turns out not to be factually accurate at the end of the day.

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But we don't look at it in hindsight.

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Why wasn't there on the face of that affidavit probable cause to think that he was part of this group that was operating in New Orleans?

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Because the agent who is in charge of presenting adequate probable cause, the only thing he had is the following phrase.

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It is believed that so and so in Columbia is the source.

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Now, your honors, if anyone came to you and argued

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It is believed.

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I'm not going to read that one paragraph in isolation.

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When you read the whole affidavit, it's about multiple individuals.

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So it's clearly a multi-individual operation that definitely has a nexus to Louisiana.

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And the affidavit reads as though, and yet here's another person that's cocking to the same guy.

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And so why isn't there at least probable cause there to think that he was part of this Louisiana operation?

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given the surrounding context in which they hear Tony talking, they identify the phone number, they hear the same types of conversations about drug dealing that say he must be part of this too.

[00:15:20] Speaker 04:
Well, because there's actually no link between Tony

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and Louisiana, except through this one individual.

[00:15:27] Speaker 03:
Well, yes, but that person is involved in dealing drugs in New Orleans.

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So again, it wouldn't be proof beyond a reasonable doubt by any means, maybe not even a preponderance.

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Or why wasn't it probable cause to think he was part of this grouping?

[00:15:41] Speaker 04:
There wasn't probable cause of it.

[00:15:43] Speaker 04:
That's my point, which is that your honor.

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I'm not missing why that's not probable cause.

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Here's someone else who's talking to the same person who's dumping all this stuff in Louisiana.

[00:15:53] Speaker 04:
Your honor, there's not probable cause that the same individual talking to Tony was involved in Louisiana.

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There is the bare assertion that it is believed that.

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It is believed that.

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Passive voice, we don't know who, we don't know when, we don't know why.

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It is believed that's it.

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Plus one apparently maybe one phone call.

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placed by the Louisiana connection in Columbia.

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So there's nothing there, there's certainly no probable cause, even under a light standard, for making this connection.

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And they don't cite any evidence like you need when you go in and you're trying to establish a critical fact like this jurisdictional nexus.

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There's just no, nothing but

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It is believed that this man was the source.

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And the court cannot honor that as probable cause without opening the floodgates for the government to do very, very minimal work to establish its case in these search warrants and without turning the government loose to just assert, well, it's believed that this, it is believed that that.

[00:17:02] Speaker 04:
In this case, that nexus, that's all it hangs on to, plus apparently,

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some point in time, somebody called that same person, and Tony called that same person.

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That's it.

[00:17:16] Speaker 04:
Thank you, Your Honor.

[00:17:21] Speaker 02:
I'll give you a couple minutes in reply.

[00:17:25] Speaker 02:
All right.

[00:17:25] Speaker 02:
Mr. McGovern.

[00:17:37] Speaker 00:
Morning, Your Honors.

[00:17:38] Speaker 00:
May it please the court, Michael McGovern on behalf of the United States, Pelley in this matter.

[00:17:45] Speaker 00:
After Mr. McGruder fled guilty pursuant to a plea agreement that his own counsel admitted gave him substantial concessions from the government, he engaged in protracted litigation to withdraw that plea agreement before the district court.

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Over many months, the district court considered each and every one of his claims and in a series of four orders, written orders,

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rejected each and every one of those.

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Now, Mr. McGruder is before you on appeal, advancing only two claims, one of which he never presented before the district court.

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and the other of which was presented but is entirely meritless.

[00:18:24] Speaker 00:
Because the first claim was never presented before the district court, and because the second claim is meritless, the district court did not abuse its discretion, which is the standard for evaluating the denial of the motion to withdraw, when it denied that motion to withdraw.

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Turning first to his new claim on appeal regarding the jurisdictional nexus of the 2008

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warrant that was issued in the Eastern District of Louisiana.

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That claim was never presented to the district court.

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It's not properly before this court.

[00:18:57] Speaker 03:
There was no development of the record regarding what his counsel, the only way in which- We often have ineffective assistance of counsel arguments raised in direct appeals for the first time on appeal for obvious reasons as a new attorney on the appeal.

[00:19:13] Speaker 03:
And we haven't treated those as forfeited in the past, have we?

[00:19:17] Speaker 00:
No, Your Honor.

[00:19:18] Speaker 00:
So on a direct, and I'd like to point out that Your Honor, correctly noted, those are majority of those decisions are in the context of a direct appeal here.

[00:19:25] Speaker 00:
We're talking about the direct appeal of a motion to withdraw.

[00:19:30] Speaker 03:
So it's still a direct appeal in his criminal case that was denied.

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Final judgment was entered.

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This is a direct criminal appeal.

[00:19:37] Speaker 00:
Correct, Your Honor.

[00:19:38] Speaker 00:
So I don't think I think I would

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distinguish this situation where there is an appropriate vehicle where he could raise a 2255 based on this claim and then be subject to appropriate procedural bars?

[00:19:53] Speaker 03:
Well, the argument is the two attorneys in district court did not raise this issue and so were ineffective.

[00:20:01] Speaker 03:
There was no attorney in district court to raise their own self-ineffectiveness.

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Which is why we allowed it to be raised here.

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And then we decide whether there's merit or potential merit or not.

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And if there is, we can remand for fact finding.

[00:20:13] Speaker 03:
If there's no legs to it, we can deny it.

[00:20:16] Speaker 03:
But I don't understand why.

[00:20:18] Speaker 03:
This is a direct criminal appeal by a claim of ineffectiveness raised by a new attorney about the trial attorneys.

[00:20:27] Speaker 03:
Your argument is we expected the trial attorneys to raise their own ineffectiveness.

[00:20:31] Speaker 03:
Is that what you mean?

[00:20:32] Speaker 00:
Well, here, given that there was new counsel for the motion to withdraw, yes, because that person didn't identify this problem either.

[00:20:39] Speaker 03:
That person didn't identify the effectiveness of the prior attorney.

[00:20:42] Speaker 00:
which may be a ground for overcoming some type of procedural bar in a proper 2255 motion, but that would require the development of the record.

[00:20:52] Speaker 03:
When an attorney does not ineffectively fail, let's just assume there's ineffectiveness.

[00:20:58] Speaker 03:
If an attorney ineffectively fails to argue ineffective assistance of counsel, we're going to say it's forfeited on direct appeal.

[00:21:05] Speaker 03:
When have we ever done that?

[00:21:07] Speaker 00:
I have not seen a case in which they've done that.

[00:21:09] Speaker 00:
I also haven't seen that in the context of a motion to withdraw, which occurred after.

[00:21:17] Speaker 03:
His argument here is that neither attorney below raised this and should have.

[00:21:23] Speaker 03:
And even more so now, if in fact they actually had the Louisiana warrant, I just don't understand.

[00:21:28] Speaker 03:
I mean, we can proceed to other aspects of this argument, but we've never.

[00:21:31] Speaker 03:
And Your Honor.

[00:21:33] Speaker 03:
We don't expect ineffectiveness to be raised by the attorneys who were alleged to be ineffective.

[00:21:38] Speaker 03:
I'm not saying anybody was or was not at this point, but that's the issue before us.

[00:21:41] Speaker 00:
Yes, Your Honor.

[00:21:42] Speaker 00:
I understand your point.

[00:21:44] Speaker 00:
This court has said in the context of appeals of collateral attacks that where a ground for an effectiveness hadn't been properly raised, it can't be then raised on appeal.

[00:21:54] Speaker 00:
I would analogize a motion to withdraw similarly, especially where they were represented by another council.

[00:22:01] Speaker 00:
But I take your honor's point.

[00:22:02] Speaker 00:
And turning to the other aspects, there's no need for a remand in this case because there is no merit to the allegation that there was no jurisdiction to issue the 2008 Louisiana warrant.

[00:22:15] Speaker 00:
That is because in Louisiana, agents were investigating a drug trafficking ring that was actively distributing drugs in Louisiana.

[00:22:23] Speaker 00:
There had been an indictment of certain of those individuals.

[00:22:27] Speaker 00:
Through wiretaps, they had identified the go-between who was in Columbia who was providing the directions on how to pick up and how to pay for those drugs.

[00:22:37] Speaker 00:
And through a wiretap of that individual that was conducted by Colombian investigators, they tied that go-between to another member of a drug trafficking organization based in Columbia that was responsible or that was the supplier for the drugs in New Orleans.

[00:22:56] Speaker 00:
Through the wiretap in Columbia, they also picked up conversations Mr. McBruder was having with the higher individual in the drug trafficking organization in Columbia.

[00:23:07] Speaker 00:
And on those facts, those agents had probable cause.

[00:23:11] Speaker 00:
There was a reasonable inference to be drawn that the drug trafficking organization that had contacts with Louisiana

[00:23:18] Speaker 00:
was distributing drugs into the United States via Mr. McGruder.

[00:23:23] Speaker 00:
And because of that.

[00:23:24] Speaker 03:
Into the United States or into Louisiana?

[00:23:28] Speaker 00:
Was involved in a conspiracy to distribute drugs, which included overt acts distributing to Louisiana, which it had established through.

[00:23:37] Speaker 03:
Where does the affidavit lay out probable cause to think that Mr. McGruder, Tony, in the affidavit was distributing to Louisiana?

[00:23:46] Speaker 03:
What facts?

[00:23:47] Speaker 00:
I don't believe that what the jurisdiction over the offense being investigated language would require is to show Tony's own overt acts in Louisiana.

[00:23:58] Speaker 00:
The requirement is that there be jurisdiction over the offense and in a drug conspiracy, that offense can be charged and there's jurisdiction to investigate it.

[00:24:09] Speaker 03:
Right, so this is something you can clarify for me, was he being

[00:24:13] Speaker 03:
I just don't see this in the affidavit for some of the reasons your friend has said on the other side has said.

[00:24:18] Speaker 03:
Was he being investigated?

[00:24:21] Speaker 03:
Was the offense under investigation for purposes of Mr. McGruder, the delivery of drugs into Louisiana or conspiracy to bring the drugs into Louisiana?

[00:24:36] Speaker 03:
Or was it, as you said, conspiracy to bring drugs somewhere into the United States?

[00:24:44] Speaker 00:
The offense under investigation was the drug trafficking of the Colombian drug trafficking organization, which had known ties to Louisiana and which had known communications with Mr. McGruder.

[00:24:57] Speaker 03:
The offense under investigation was bringing drugs into Louisiana?

[00:25:02] Speaker 00:
Yes.

[00:25:03] Speaker 03:
I'm trying to understand how you read the word jurisdiction in the Stored Communications Act.

[00:25:09] Speaker 03:
So the offense under investigation was

[00:25:13] Speaker 03:
a conspiracy and actual acts of delivering drugs from Columbia into Louisiana.

[00:25:20] Speaker 03:
Correct.

[00:25:21] Speaker 03:
And where is the connection in the affidavit to think that Tony with a 202 area code was part of that operation or a different operation, not yet being investigated, of bringing drugs into other places in the United States?

[00:25:39] Speaker 00:
there was a connection between the supplier, a known supplier of drugs to New Orleans was supplying another individual whose whereabouts were unknown, who had a 202 area code in the day of mobile phones.

[00:25:55] Speaker 00:
I don't know that that actually provides very much information for anyone as to location.

[00:26:00] Speaker 00:
And so at that point, it's a reasonable inference that the conversations

[00:26:06] Speaker 00:
between Tony and the Colombian drug trafficking organization were related to that Colombian drug operations conspiracy to distribute drugs, which included for that drug trafficking organization, the distribution of drugs into Louisiana.

[00:26:25] Speaker 03:
That would all make sense if the effort, and I understand the argument completely.

[00:26:28] Speaker 03:
I don't understand why the affiant did not say then

[00:26:33] Speaker 03:
We think that he is part of this operation because he's talking to the same head honcho.

[00:26:40] Speaker 00:
Well, every guy or whatever his title was and I apologize that I don't have the language directly at my fingertips, but they did state that they were investigating.

[00:26:53] Speaker 00:
that they believed that further information on this, the geolocation would give them further information on the crimes that were being committed by those three.

[00:27:03] Speaker 00:
And they listed the individuals in New Orleans, the individuals in Columbia and Tony.

[00:27:09] Speaker 00:
And so I think the reasonable inference from this is that they believed the information that they would receive would be information relevant to their investigation of the New Orleans drug trafficking organization.

[00:27:23] Speaker 00:
If Tony was a separate spoke, they were investigating the hub, the drug trafficking organization in Columbia.

[00:27:34] Speaker 00:
So information regarding Tony could be relevant to the New Orleans drug trafficking, as it could have provided evidence in any number of ways that could potentially be admissible, even in a drug trafficking

[00:27:47] Speaker 00:
prosecution that didn't have to do with Tony.

[00:27:49] Speaker 00:
So I think that's what I'm trying to decouple is Mr. McGruder's argument is that we needed to establish Tony could be responsible for crimes in New Orleans before we can even look at his information.

[00:28:02] Speaker 00:
And I don't think that's what's required under the act.

[00:28:06] Speaker 00:
I think what's required on the act is that there be jurisdiction over the offense that they are investigating.

[00:28:11] Speaker 00:
And when they're investigating a

[00:28:15] Speaker 00:
drug conspiracy to import drugs into New Orleans and they have a wiretap where an individual is discussing receiving drug proceeds and providing drug proceeds and picking up drugs and dealing with drugs, that that provides a sufficient nexus for them to explore that further and to gather that evidence because that evidence, there's a probable cause that that evidence would be relevant even to just the New Orleans trafficking organization.

[00:28:42] Speaker 01:
Well, defense counsel indicates that when you are on the ground right there in DC with respect to Mr. McGruder, there's no evidence in the record about what you knew, you know, with respect to him.

[00:28:54] Speaker 01:
And it's only at the time that you pull him aside and search his backpack that you then come into anything that is potentially criminal.

[00:29:02] Speaker 01:
Can you just respond to that allegation?

[00:29:04] Speaker 00:
So I think I would disagree with that, Judge Childs.

[00:29:08] Speaker 00:
Turning to the probable cause argument that he has made, it's very clear that a judge of the District of Columbia who issued a wiretapping warrant determined that there had been previous

[00:29:21] Speaker 00:
indication of or there had been a previous finding that there was probable cause that Tony was involved in distribution, a conspiracy, money laundering and use of communication facilities to facilitate drug trafficking.

[00:29:38] Speaker 00:
Those probable cause determinations had already been made.

[00:29:41] Speaker 00:
And as he conceded in response to Judge Millett's question, there's no doubt that there was probable cause for those agents.

[00:29:48] Speaker 00:
And as the discussion with Judge Millett continued, there are cases that stand for the fact that where that probable cause exists and where there is a basis for that arrest, we don't look at the subjective intent of those FBI officers as to which particular crime they are necessarily arresting for.

[00:30:06] Speaker 00:
I would argue that there is nothing in the record that indicates those officers weren't arresting him

[00:30:10] Speaker 00:
for the crime that he committed.

[00:30:12] Speaker 00:
I believe there was probable cause to believe that he was transporting drugs at that time.

[00:30:17] Speaker 00:
He was engaged in physical travel, which was entirely consistent with the physical travel he had been engaged in previously for the prior crimes that the judge had found probable cause to believe was possession of narcotics and drug conspiracy.

[00:30:32] Speaker 00:
So I do believe that there was probable cause for the crime itself that was charged.

[00:30:36] Speaker 00:
But we don't look post-hoc.

[00:30:37] Speaker 00:
We don't look at what ultimately was indicted.

[00:30:40] Speaker 00:
We look at the time of the arrest.

[00:30:42] Speaker 00:
Was there probable cause for them to arrest him for something?

[00:30:47] Speaker 00:
And I think one final point I'd like to make, I see my time is up.

[00:30:51] Speaker 00:
Defense counsel noted that the arrest was triggered by the search rather than having

[00:31:00] Speaker 00:
been engaged in person.

[00:31:01] Speaker 00:
I don't think there's anything in the record that supports that.

[00:31:04] Speaker 00:
And because this is a motion to withdraw after there's already been a plea agreement, it is his burden below to show both deficiency and

[00:31:15] Speaker 00:
Prejudice.

[00:31:16] Speaker 00:
So he has the burden to show prejudice, which means he has the burden to show that there was some Fourth Amendment violation.

[00:31:21] Speaker 00:
And it's not a reasonable inference that these officers who had engaged in a month's long investigation of this individual would do a takedown and not intend to arrest that individual.

[00:31:34] Speaker 00:
I think it just

[00:31:36] Speaker 00:
doesn't make sense.

[00:31:37] Speaker 00:
And there is nothing in the record that indicates that they had anything but an intention to seize drugs the next time he went to New York.

[00:31:46] Speaker 00:
In the warrant where they sought the geolocation itself, and this is on page A148, they specifically said that geolocation service

[00:31:55] Speaker 00:
will assist them in affecting a seizure of the drugs because they believed he was going to travel to New York again.

[00:32:01] Speaker 00:
And that is exactly what they did.

[00:32:03] Speaker 00:
When he went to New York, they arrested him and seized those drugs and charged him with the resulting crime.

[00:32:10] Speaker 00:
If there are no further questions, we'd ask Sufer.

[00:32:22] Speaker 04:
Thank you.

[00:32:23] Speaker 04:
Again, Judge Childs, I am not denying that agents knew a lot about Mr. Edwards by the time he got off the bus.

[00:32:31] Speaker 04:
I'm making an argument about the applicability in this case of the search incident to arrest doctrine and how it is being stretched beyond recognition, beyond prior precedent to apply to a crime that notwithstanding counsel's

[00:32:45] Speaker 04:
testimony today that there was a takedown going on.

[00:32:49] Speaker 04:
There was actually no evidence that when he got off the bus, they were intending to arrest him for a drug conspiracy for which they had evidence from, and they did have evidence of conversations.

[00:33:00] Speaker 04:
They had been following him, but there's no evidence that they were intending to do a takedown right then, but they certainly did as described.

[00:33:07] Speaker 01:
Why be there?

[00:33:08] Speaker 01:
I mean, why even be, and I'm referring to the agents at the train station or whatever, if you will,

[00:33:16] Speaker 04:
to do a search and that's exactly what they did and they found something and then they arrested him and there's no and and council is doing a bit of burden shifting here when when it's actually the government's burden to justify a warrant search and there's no evidence in the record supporting a search incident to arrest under any of these cases because of what I've been described

[00:33:42] Speaker 04:
So I just wanted to clear that up because we have other reasons for disputing that search than the ones that you think I have.

[00:33:51] Speaker 04:
Now, I would like to go back to the Louisiana warrant.

[00:33:54] Speaker 04:
And you can see from counsel's argument right now how dependent he is on this notion that the person talking to Tony was the source of the drugs for the others.

[00:34:05] Speaker 04:
And how dependent he is for that being the way to establish

[00:34:09] Speaker 04:
the jurisdiction of the Louisiana court to issue that warrant.

[00:34:12] Speaker 04:
And my point laser focuses on that connection, because I'm not saying that the only way to establish jurisdiction in Louisiana over Mr. McGruder's activities would be to have him running around Louisiana.

[00:34:26] Speaker 04:
I am saying, however, that what they don't, they don't have that, that's for sure.

[00:34:30] Speaker 04:
They don't have him running around Louisiana, any connection between him directly in the Louisiana case, but they also can't really establish this link through Columbia

[00:34:39] Speaker 04:
except by asking the court to say, you know, it's okay to say is believed that and council keeps referring to him to this Colombian as the source as the supplier, but it all comes down to faith that somebody, someone out there sometime for some reason had arrived at the right conclusion that he was the source.

[00:35:02] Speaker 04:
for the Houston and New Orleans drug conspiracy.

[00:35:06] Speaker 04:
And that is way too thin.

[00:35:08] Speaker 04:
That is not probable cause, and a trained agent would know that.

[00:35:11] Speaker 03:
Well, he says, I believe, based on training and experience in these conversations, not just that, we're discussing the trafficking of multiple kilograms of cocaine and heroin.

[00:35:20] Speaker 03:
And he talked about the sort of language, the code language that was used, and then says,

[00:35:28] Speaker 03:
given that he's talking to the same guy about the same drugs that are being moved into Louisiana, that the geolocation information will be evidence of Tony's membership in the drug, the drug, not a drug, the drug conspiracy and the drug conspiracy is one that Louisiana court had jurisdiction over.

[00:35:49] Speaker 04:
Your honor, there's no, there's nothing but the belief of someone out there that this person was the source.

[00:35:56] Speaker 04:
There's a belief and one phone call, perhaps, at least one phone call.

[00:36:00] Speaker 03:
Wait, wait, they had multiple phone calls that they thought this person was the source of the drugs that were going to the other people.

[00:36:07] Speaker 03:
Cacho and other, there's too many names here for me to keep straight.

[00:36:10] Speaker 04:
No, Your Honor, no, not multiple phone calls.

[00:36:12] Speaker 04:
No.

[00:36:12] Speaker 04:
And that's my point, is that there's, we don't know when at least one phone call was placed connecting up this chain of people.

[00:36:21] Speaker 04:
And if you look at it closely, there's just, as I put it in the opening brief, it's just a gossamer thread

[00:36:26] Speaker 04:
established factually between these people.

[00:36:28] Speaker 04:
And other than that, it's just this belief.

[00:36:30] Speaker 03:
Agent, and you haven't, I had understood you to challenge this.

[00:36:34] Speaker 03:
One of the probable cause allegations is that Mascara Aspiria was the Columbia based supplier in coordination with C-A-C-H-U, Cashew, who is a Louisiana, part of the Louisiana drug conspiracy.

[00:36:47] Speaker 03:
It's a probable cause, obviously it's a probable cause.

[00:36:50] Speaker 03:
All right, and you haven't disputed that.

[00:36:52] Speaker 04:
I have, I have disputed that.

[00:36:54] Speaker 03:
So I thought your argument was it wasn't probable cause as to Tony.

[00:36:59] Speaker 03:
You're saying there's not probable cause as to Mascara Esparilla either?

[00:37:02] Speaker 04:
I'm saying that that connection through the Colombian, and there are two Mascaras involved here.

[00:37:08] Speaker 03:
I know, but Esparilla is the one that was the supplier.

[00:37:11] Speaker 04:
According to the government and according to someone's belief, Your Honor, that's precisely the point that I'm challenging here, which is that the government wants the court, wanted the magistrate judge, and now wants this court to believe that that person

[00:37:23] Speaker 04:
was the supplier in Houston and Louisiana.

[00:37:26] Speaker 04:
But if you look at what they offer.

[00:37:27] Speaker 03:
They already got a separate warrant on muscara-esperia.

[00:37:29] Speaker 03:
I mean, there's, I don't know how you can read this affidavit and say there wasn't probable cause to think that there was a basis for topping muscara-esperia's phone as the supplier of drugs into Louisiana through the other individuals.

[00:37:48] Speaker 03:
Amari or Kashu.

[00:37:50] Speaker 03:
And then this other guy shows up on the phone and they say, well, we think he might be part of it.

[00:37:54] Speaker 03:
He's having the same coded conversations.

[00:37:56] Speaker 03:
He's having coded conversations.

[00:37:58] Speaker 03:
And so we think he's part of the drug conspiracy.

[00:38:00] Speaker 04:
Your honor, there are two mascaras.

[00:38:02] Speaker 04:
There's mascara Amari and mascara Asprea.

[00:38:05] Speaker 04:
By the way, the government also tries to introduce later search warrants as to the link with Mr. McGruder or Tony.

[00:38:14] Speaker 04:
And the court should not be looking, no court should be looking to

[00:38:18] Speaker 04:
future later search warrants to establish probable cause for the one that issued.

[00:38:22] Speaker 04:
So I, I'm not.

[00:38:24] Speaker 03:
I'm very confused as to your argument.

[00:38:26] Speaker 03:
Let me understand that your argument is that they didn't even have probable cause to think that Mascara Asprea was the source in Columbia and to have a warrant on his phone?

[00:38:40] Speaker 04:
Not presented in this affidavit.

[00:38:43] Speaker 04:
Your honor.

[00:38:43] Speaker 03:
I thought your whole argument was about probable causes to Tony.

[00:38:46] Speaker 04:
Oh, no.

[00:38:47] Speaker 04:
I'm glad I cleared that up.

[00:38:48] Speaker 04:
Now, what my brief says is that the link between Tony and the search warrant, the investigation in Louisiana, goes through Columbia and goes through this person, Mosquera Asprea, who it is asserted in this is the source of what's going on in Louisiana.

[00:39:05] Speaker 04:
However, if you examine the facts introduced here, there's

[00:39:11] Speaker 04:
completely insignificant support for that proposition repeated again here today over and over.

[00:39:17] Speaker 04:
And if you look at that, what factual support the offense put into that proposition that the person talking to Tony was the source for all these drugs going to Louisiana, there's just not a significant amount of information.

[00:39:34] Speaker 04:
And this court cannot be permitting search warrants to issue

[00:39:38] Speaker 04:
with key elements such as the jurisdictional nexus being established by statements like, it is believed that, because that's all they got.

[00:39:48] Speaker 04:
And we cannot let agents do that.

[00:39:49] Speaker 03:
It's not all they've got.

[00:39:49] Speaker 03:
There's a lot of facts about coded conversation, who's calling who, and who's talking to whom.

[00:39:54] Speaker 04:
That's all that brings the jurisdiction together, Your Honor.

[00:39:56] Speaker 03:
I understand your argument.

[00:39:58] Speaker 04:
Thank you.

[00:40:00] Speaker 02:
All right.

[00:40:00] Speaker 02:
Mr. Sirvi, you were appointed by the court to represent Mr. Maguro.

[00:40:04] Speaker 02:
We thank you for your assistance.

[00:40:06] Speaker 04:
Thank you, Your Honor.