Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 1 of 47 Pages 1 - 47 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Before The Honorable Vince Chhabria, Judge UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) VS. ) ) DONNELL ARTIS, THURMAN GAITHER ) III, ANTONIO OLIVER, STERLING ) HOLMES, and CHANTA HOPKINS also) known as Askari Aquil Mohammed,) ) Defendants. ) _______________________________) NO. CR 16-00477 VC San Francisco, California Wednesday, November 29, 2017 TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: BY: BRIAN J. STRETCH United States Attorney 450 Golden Gate Avenue San Francisco, California 94102 RANDALL W.C. LEONARD ASSISTANT UNITED STATES ATTORNEY For Defendant Donnell Artis: LAW OFFICE OF JOHN J. JORDAN 601 Montgomery Street - Suite 850 San Francisco, California 94111 BY: JOHN J. JORDAN ATTORNEY AT LAW (APPEARANCES CONTINUED ON FOLLOWING PAGE) REPORTED BY: Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR Official Reporter Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 2 of 47 1 APPEARANCES: 2 For Defendant Thurman Gaither III: LAW OFFICE OF ALAN A. DRESSLER 601 Montgomery Street - Suite 850 San Francisco, California 94111 BY: ALAN A. DRESSLER ATTORNEY AT LAW 3 4 (CONTINUED) 5 8 For Defendant Sterling Holmes: BORO LAW FIRM 345 Franklin Street San Francisco, California BY: ALBERT J. BORO JR. ATTORNEY AT LAW 9 For Antonio Oliver: 6 7 10 11 BY: 94102 PETER L. ARIAN LAW OFFICES 407 San Anselmo Avenue - Suite 201 San Anselmo, California 94960 PETER L. ARIAN ATTORNEY AT LAW 12 13 14 15 For Defendant Chanta Hopkins also known as Askari Aquil Mohammed: LAW OFFICES OF STEVEN F. GRUEL 315 Montgomery Street - 9th Floor San Francisco, California 94104 BY: STEVEN F. GRUEL ATTORNEY AT LAW 16 17 18 19 20 21 22 23 24 25 BY: LAW OFFICES OF JASON T. CAMPBELL 300 Montgomery Street - Suite 660 San Francisco, California 94104 JASON T. CAMPBELL ATTORNEY AT LAW 2 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 3 of 47 1 Wednesday - November 29, 2017 10:06 a.m. 2 P R O C E E D I N G S 3 ---000--- 4 THE CLERK: Calling Case Number 16-cr-00477, U.S.A. 5 versus Donnell Artis, U.S.A. versus Thurman Gaither, U.S.A. 6 versus Sterling Holmes, U.S.A. versus Antonio Oliver, and 7 U.S.A. versus Chanta Hopkins. 8 Counsel, please state your appearances for the record. 9 10 Good morning, Your Honor. MR. LEONARD: Randy Leonard for the United States. 11 THE COURT: 12 MR. JORDAN: Good morning. Good morning, Your Honor. John Jordan on 13 behalf of my client Donnell Artis, who's present in court in 14 the Marshal's custody in the top row to the end. 15 THE COURT: Good morning, Mr. Artis. 16 MR. ARIAN: Good morning, Your Honor. 17 behalf of Antonio Oliver. 18 custody. He's present in court. He's in He's in the lower row on the end. 19 THE COURT: 20 MR. DRESSLER: Hello, Mr. Oliver. Good morning, Your Honor. 21 Dressler on behalf of Thurman Gaither. 22 and I think the Court is aware of that. Alan Dena Young is out ill, 23 THE COURT: Yes. 24 MR. GRUEL: Your Honor, good morning. 25 Peter Arian on Thank you. Steven Gruel on behalf of Mr. Chanta Hopkins, who's in the back row on the 3 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 4 of 47 1 left. 2 case, Jason Campbell, Your Honor. Also with me is my colleague, who's assisted in this 3 THE COURT: 4 MR. CAMPBELL: 5 MR. BORO: Good morning. Good morning, Your Honor. And good morning, Your Honor. 6 on behalf of Defendant Sterling Holmes. 7 custody. 8 9 Albert Boro Mr. Holmes is out of He should be here but he's not here yet, Your Honor. THE COURT: Okay. Do you want to waive his appearance for these proceedings? 10 MR. BORO: 11 THE COURT: 12 MR. LEONARD: 13 THE COURT: 14 MR. BORO: 15 THE COURT: I do, Your Honor. Any objection from the Government? No objection. Okay. That's fine. Thank you. I guess maybe let's start by talking about 16 Mr. Artis' motion to suppress, and let me start with the 17 Government. 18 I mean, I think the Government has some problems in this 19 case, continues to have some problems in this case. 20 illegal searches were there in this case? 21 least one illegal search; right? 22 Mr. Artis' girlfriend's apartment. 23 you don't dispute that that was an illegal search. 24 MR. LEONARD: 25 THE COURT: How many I mean, there was at And that was the search of It seems like you don't -- Actually, Your Honor, I do. Why didn't you argue that the search was 4 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 5 of 47 1 legal in your papers? 2 MR. LEONARD: The reason why I didn't rely on it is 3 because I cannot be clear because the agents cannot 4 specifically recall whether they saw an uneven stack of credit 5 cards before or after they had been moved. 6 THE COURT: 7 apartment in the first place. 8 MR. LEONARD: 9 I disagree, Your Honor. They had an arrest warrant. 10 11 But they shouldn't have entered that THE COURT: What's your authority for the proposition that they could enter the apartment? 12 MR. LEONARD: With an arrest warrant for Mr. Artis and 13 a belief that he is there -- 14 THE COURT: 15 MR. LEONARD: Do you have any authority? That's Payton -- Payton, Steagald, 16 Underwood. 17 have an arrest warrant for somebody and you have a reason to 18 believe that they're in a location, that arrest warrant alone 19 is enough to go into that residence to execute the arrest 20 warrant. 21 These cases stand for the proposition that if you So I have no problem with them going into that apartment 22 to execute the arrest warrant. 23 think we need to talk about protective sweep or security sweep 24 or the door cracking open. 25 Mr. Artis and a reason to believe that he was there, a belief So we don't -- I don't even They had an arrest warrant for 5 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 6 of 47 1 that was, frankly, by seeing the credit cards there was 2 substantiated. 3 4 I mean, so -THE COURT: So if you have a warrant to arrest 5 somebody but not a warrant to -- this is an issue that I've 6 not -- I mean, I just assumed you were -- frankly, I assumed 7 you were conceding that this search was illegal because nowhere 8 in the 50 briefs that you filed did you argue that the search 9 was legal. 10 MR. LEONARD: I'm conceding, Your Honor, because I 11 cannot establish the plain view doctrine in that case with 12 respect to the cards because -- 13 THE COURT: Okay. So you're saying if you have a 14 warrant to arrest somebody, that authorizes you to go into 15 their home and get them even if you don't have a warrant to 16 search their home? 17 MR. LEONARD: 18 THE COURT: 19 MR. LEONARD: Absolutely. Okay. If you have an arrest warrant and a 20 reason to believe that that person lives at that house or is 21 there at that house. 22 23 THE COURT: And it started with -Then why is the declaration -- why is the agent -- was it Carlson? 24 MR. LEONARD: 25 THE COURT: Stonie Carlson; right? That's right. Why does Stonie Carlson's affidavit and 6 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 7 of 47 1 declaration talk about how he went there and the door was 2 unlocked or open and he became worried about safety and so he 3 needed -- felt the need to do a protective sweep? 4 MR. LEONARD: He wanted full disclosure, and that's -- 5 as soon as he knocked on the door and felt the door cracked 6 open -- 7 THE COURT: I mean, why didn't he say, "I went in 8 there to look and see if Mr. Artis was there because I had a 9 warrant for his arrest"? 10 MR. LEONARD: Well, that is why they went to the 11 apartment, and I think he does make that clear. 12 the apartment to execute the arrest warrant. 13 knocked on the door, the door cracked open, he thought that was 14 very odd and his interest immediately changed. His interest 15 changed to, "Well, this is a high-crime area. I'm going after 16 a criminal suspect. 17 I knocked. 18 changed into a security sweep. 19 unlawful to go in there. 20 The door's cracked. This is weird." THE COURT: Okay. They went to Then when they The door came open as And so his posture immediately That is not to say that it's But you don't contend that somebody 21 can go into an apartment just because it's a high-crime area 22 and the door is partially open? 23 MR. LEONARD: 24 THE COURT: 25 No. I mean -- You know that's not permitted. You think that the reason it was okay to go in the apartment was because 7 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 8 of 47 1 he had a warrant for Mr. Artis' arrest? 2 MR. LEONARD: 3 THE COURT: 4 MR. LEONARD: Yes. Okay. I think that is the strongest basis, and 5 I'm confident on the law at that point. 6 You have an arrest warrant and a reason to believe that the 7 person is there. 8 9 THE COURT: Okay. And it's two prong: And so -- I mean, we can get back to that if we need to, but I'm not sure if we do because you 10 are not relying on any of the information gathered by the 11 officers during the search of that apartment to justify the 12 affidavit for the arrest that took place at -- was it Willie 13 Brown's? -- not the arrest, the warrant for the phone -- to 14 search the phone that was taken at -- was it Willie Brown's 15 liquor store? 16 17 MR. LEONARD: Outside of Willie Brown's liquor store, yes, Your Honor. 18 THE COURT: 19 MR. LEONARD: Okay. I just want to be clear, though, 20 Your Honor. 21 but I'm not doing it -- I'm not not relying on it because it 22 was an unlawful search. 23 relying on it because I can't establish through my 24 interviews -- through the declarations and my interviews with 25 the agents that they knew precisely that the cards were stacked I am -- you're right, I am not relying on that, I don't believe it was. I'm not 8 9 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 9 of 47 1 unevenly such that they were in plain view before or after or 2 if someone had manipulated them. 3 THE COURT: Okay. What about the August 20th, 2015, 4 warrantless search of the apartment on Jefferson Street in 5 Oakland? 6 7 Was that an illegal search? MR. LEONARD: I don't -- I don't know, but I do know this -- 8 THE COURT: 9 MR. LEONARD: There's a stipulation. 10 THE COURT: 11 MR. LEONARD: 12 THE COURT: 13 MR. LEONARD: 14 THE COURT: That's right. The Government has stipulated -Yes. -- to not using evidence from that search. Yes. I just don't want to say -- I assume that was an illegal search. I 15 assume the Government would not have stipulated to that if the 16 Government truly believed it was a legal search. 17 18 MR. LEONARD: THE COURT: 20 MR. LEONARD: 21 THE COURT: 22 MR. LEONARD: 23 THE COURT: 25 I mean, that is our approach. 19 24 Fair enough, Your Honor. Okay. I just don't want to say that I -- Who conducted that search? I'm sorry? Who conducted that search? Stonie Carlson conduct that search as well? MR. LEONARD: No, Your Honor. Did Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 10 of 47 1 THE COURT: 2 MR. LEONARD: Who conducted that search? That search was initiated by a bail 3 bondsman who then called Oakland PD and Oakland police officers 4 did that search. 5 6 THE COURT: Okay. Okay. Now, turning to the search of the cell phone, let 7 me start -- I mean, I think there are -- you have two potential 8 problems. 9 agent getting a warrant from the state court judge, the state One is that -- one is this issue of the federal 10 magistrate. 11 addressed that issue in your papers because you point to 12 federal law authority for a federal agent to serve as a state 13 peace officer and perform the functions of a state peace 14 officer; and that's fine, but what you don't point to is any 15 state law authority for the state court judge to issue a 16 warrant to a federal officer as existed in South Dakota in that 17 South Dakota case. 18 And I don't think that you have adequately I wouldn't be surprised if there were California -- if the 19 law in California permitted state court judges to issue 20 warrants to federal officers who are part of some sort of joint 21 task force, joint law enforcement task force. 22 surprise me, but you haven't pointed to it. That wouldn't 23 So do you have -- and I assume that if there is no state 24 law authority for a state court judge to issue a warrant to a 25 federal officer, then it was a bad warrant. So do you have 10 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 11 of 47 1 any -- can you point me to any source of state law making clear 2 that a state court judge in California has authority to issue a 3 warrant to a federal officer? 4 MR. LEONARD: Not anything other than I've already 5 presented in the papers, and that is the state law that 6 authorizes a state judge to issue a search warrant to a sheriff 7 and the -- 8 THE COURT: 9 MR. LEONARD: 10 11 THE COURT: 14 -- the Marshal's authority to -- Well, where -- what's the definition -- I mean, what's the state law definition of a "sheriff"? 12 13 Yeah. MR. LEONARD: That, I don't -- in California, I don't know. THE COURT: Then why is that helpful? I don't 15 understand why it's helpful that there -- to you -- that there 16 is a state statute that authorizes state court judges to issue 17 warrants to sheriffs. 18 MR. LEONARD: I think it's because that Carlson, as 19 part of this joint State-Federal Fugitive Task Force, takes the 20 position as a sheriff for purposes of getting this warrant. 21 THE COURT: Right, but doesn't there need to be some 22 source of California law saying that Carlson is deemed a 23 sheriff under California law? 24 MR. LEONARD: 25 I don't. I think federal law and his position as part of the State Fugitive Task Force -- 11 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 12 of 47 1 2 THE COURT: Federal law makes him a sheriff under California law? 3 MR. LEONARD: 4 THE COURT: 5 Well, I mean -- So if federal law said that all French poodles are sheriffs under California law, would that be okay? 6 MR. LEONARD: 7 THE COURT: Of course not, Your Honor. There would have to be California law 8 saying, "Yes, we agree that French poodles are sheriffs"; 9 right? 10 MR. LEONARD: 11 THE COURT: 12 Certainly. Otherwise French poodles would not be a sheriff under California law; right? 13 MR. LEONARD: 14 THE COURT: That's right. So it seems to me that a federal law that 15 authorizes a federal officer to serve as a quasi state sheriff 16 is sufficient insofar as it goes to establish that when the 17 federal officer is doing that, the federal officer is not 18 violating federal law, but it does not establish that the 19 federal officer is authorized under state law to serve as a 20 peace officer. 21 Like I said, I wouldn't be surprised if there were some 22 California law out there authorizing a federal officer to serve 23 as a California peace officer, but I think unless you can show 24 me that, it must be a bad warrant. 25 MR. LEONARD: I'm sorry? 12 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 13 of 47 1 THE COURT: I don't understand how it would not be a 2 bad warrant if you could not establish that under California 3 law, Stonie Carlson was authorized to act as a peace officer. 4 MR. LEONARD: Well, I just also add, Your Honor, that 5 in the warrant affidavits, Agent Carlson does specify that he 6 is assisting state law enforcement officers and he is a part of 7 this team that does include -- 8 THE COURT: Yes, but if a French poodle submitted an 9 affidavit to a state court judge saying, "I'm part of a 10 State-Federal Law Enforcement Task Force assisting state 11 officers," and the state court judge issued the French poodle a 12 warrant, that would be a bad warrant; right? 13 MR. LEONARD: 14 THE COURT: Certainly. Okay. And the way -- unless there was a 15 state law that said French poodles can be peace officers under 16 California law; right? 17 MR. LEONARD: 18 THE COURT: That's right. Okay. So why does it matter that 19 Stonie Carlson said in his affidavit that he was assisting 20 state officers? 21 MR. LEONARD: Well, I think if -- with that language, 22 it demonstrates to the magistrate that he is a part of this 23 state team, which presumably includes state officers are on the 24 team. 25 affidavit, but there are state officers on this team. He's just the person standing up there delivering the So he's 13 14 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 14 of 47 1 just one representative of this state and federal team of which 2 there are a number of state peace officers that would qualify. 3 THE COURT: But it sort of begs the question. I mean, 4 let me ask you: 5 see if there is some source of California law authorizing 6 somebody like Stonie Carlson to get warrants from -- deeming 7 somebody like Stonie Carlson to be a peace officer or 8 authorizing somebody like Stonie Carlson to get a warrant from 9 a state court judge? 10 11 12 Have you had a chance to review carefully to MR. LEONARD: should. No. I mean, clearly not as deeply as I I -- so, no. THE COURT: It seems to me that you lose if you don't 13 have that. 14 don't have that. 15 agent was not authorized under California law to get a warrant 16 from a state court judge or, to put it another way, if the 17 state court judge was not authorized to issue the warrant to 18 Stonie Carlson, then that's the end of the matter; right? 19 how would you not lose if that were the case? 20 I mean, explain to me why you don't lose if you I just don't understand. MR. LEONARD: I mean, if this Then If that were the case, Your Honor, I 21 would say that is a highly technical question a judge ought to 22 catch, not the affiant; right? 23 of the good faith exception, because the agent went in good 24 faith and delivered the facts and sat there and waited while 25 the judge considered it, and then took the warrant and executed So that would be an application Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 15 of 47 1 2 3 4 it. This is a tricky -- a question. affiant should know. THE COURT: It's not one that the It's one that the judge should know. Well, first things first. Let's figure 5 out the answer to the state law question. 6 there were a provision out there that said nobody -- let's 7 just -- I'm making this up. 8 this myself either so I'm making this up, but let's say there 9 was a statute, a California statute, which said a state judge 10 may not issue a warrant to anybody except actual members of a 11 state or local Police Department, actual employees of a state 12 or local Police Department. 13 that, then clearly the state court judge was not authorized to 14 issue the warrant to Stonie Carlson and it would be a bad 15 warrant; right? I mean, what if I haven't had a chance to research If there were a statute that said You're saying even in that scenario -- 16 MR. LEONARD: 17 THE COURT: 18 MR. LEONARD: I don't think we can -- -- the good faith exception would apply? I don't think we can ever divorce the 19 analysis from the good faith exception if we're talking about a 20 scenario when agents are relying on the warrant itself. 21 mean, I think that's what the good faith exception was borne 22 out of, agents relying on a search warrant that turned out to 23 be insufficient or invalid. 24 question have to be together. 25 THE COURT: Okay. I So I think the analyses on that All right. So this is -- so that's 15 16 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 16 of 47 1 2 one problem that we have. Do you have any -- before we turn to whether there was 3 probable cause, assuming it's not a bad warrant, a bad warrant 4 in the sense that we've been discussing, do you -- 5 MR. JORDAN: 6 THE COURT: 7 MR. JORDAN: If I might, Your Honor. Go ahead. First, just briefly going back to the 8 very first point, I strongly disagree. 9 require a search warrant to go into a residence to arrest Payton, I believe, does 10 somebody even if you have a probation warrant from a California 11 judge for a violation, otherwise Payton is completely 12 meaningless. 13 14 What's Payton stand for? THE COURT: I haven't read Payton in anticipation of this hearing, so you'll have to remind me what Payton says. 15 MR. JORDAN: Well, Your Honor, Payton, a New York 16 case, involved police officers looking for a defendant -- I was 17 in New York at the time, and the word was they were coming from 18 a softball game and they decided to go to Mr. Payton's 19 residence -- or grandmother's residence perhaps -- to see if he 20 was there without a search warrant to go into the house. 21 the Supreme Court said, no, houses are important. 22 is the most important protection under the Constitution. 23 Without a search warrant to go into the house, the arrest is 24 invalid. 25 I mean, I thought I briefed it. And A residence There was no real Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 17 of 47 1 response from the Government making this argument that arrest 2 warrant alone is -- so if you want, I can give you some further 3 clarification. 4 Yeah. THE COURT: I'm a little surprised to hear that 5 if you have, you know, an arrest warrant for somebody but not a 6 search warrant, you can go into their house to arrest them; but 7 I -- that's not an issue I looked at in anticipation of this 8 hearing because I thought the Government was conceding that it 9 was a bad search. 10 MR. JORDAN: Exactly, Your Honor. If Your Honor does 11 have questions, I'd be happy to submit further authority on 12 that. 13 Going to the second point, the point you just raised, I 14 believe there is a California statute that tells a judge who he 15 can give a search warrant to. 16 has a statutory scheme under Penal Code 1529 at 830.1. 17 Wait. THE COURT: 18 It's in my papers. California Hold on. (Pause in proceedings.) 19 THE COURT: 20 MR. JORDAN: Okay. Those statutes define what a peace 21 officer is and also define what a judge -- how a judge can 22 issue a warrant. It has to be to a California peace officer. 23 This question of -- 24 THE COURT: 25 Well, but there -- I mean, I can imagine in a number of places authority being created. I mean, these 17 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 18 of 47 1 task forces, for example -- right? -- there are lots of these 2 task forces, these joint federal/state task forces -- 3 MR. JORDAN: 4 THE COURT: Absolutely. -- and I assume there are documents, you 5 know, like contractual documents or MOUs, or something like 6 that, establishing these task forces; and I wouldn't be 7 surprised if in these MOUs or other documents if it was 8 provided that, you know, the federal members of the task force 9 are considered peace officers for purposes of their task force 10 11 activities. MR. JORDAN: Well, first, this gets into, I think, an 12 important constitutional issue of state-versus-federal criminal 13 jurisdiction. 14 officers are limited under the commerce clause to what criminal 15 statutes they can enforce. 16 There is no federal police force. Those I would be -- 17 THE COURT: 18 MR. JORDAN: 19 North Dakota and California. 20 these days to cooperate with federal authorities, for example, 21 on immigration issues. 22 THE COURT: No, there -There might be a large difference between California is extremely reluctant Yeah, but this isn't an immigration issue 23 and notwithstanding California's reluctance to cooperate on 24 immigration issues, there's tons of cooperation all the time 25 between state and federal law enforcement outside the context 18 19 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 19 of 47 1 2 of immigration. MR. JORDAN: That's true, but in my experience, in 3 that joint cooperation when warrants are sought, state officers 4 go to state judges for the state warrants and federal officers 5 go to the U.S. magistrate for the federal warrants. 6 I did research this. I'm not going to say I read every 7 case in the country. 8 federal agent going in this circumstance to a state judge for a 9 state warrant. I could not find any case that upheld a 10 As counsel said, the agent did say in his affidavit, "I'd 11 like this to be for any federal, state, or local officer," but 12 the warrant that was issued does not parrot that language. 13 That authority was not given by the judge. 14 Your Honor has copies of, says "to any California peace 15 officer." 16 That warrant, which So clearly -- THE COURT: Right. And the question is whether 17 Agent Carlson was authorized to serve as -- was serving as a 18 California peace officer, you know, when he was doing this. 19 think if he wasn't, then I think the warrant has to be bad. 20 MR. JORDAN: I agree, Your Honor. I I did look into the 21 issue as best I could. I found no authority that would support 22 the Government's case. If I had, I would have had to show it 23 to the Court and to the other side. 24 found, but I just didn't find it. 25 Eventually it would be I'll rely on the case I cited in my surreply, the 20 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 20 of 47 1 District Court case that says that sheriff's statute, that 2 allows marshals to enforce federal law, not state law. 3 warrant that was sought here was for state law violations. 4 was a California state warrant -- 5 THE COURT: 6 MR. JORDAN: 7 THE COURT: And the It Yeah. -- for violation of state law. Yeah. I'm not certain I agree with that. 8 I mean, I would think -- you know, there's this -- I can't 9 remember if you-all cited this or if my law clerk just found 10 it, but there is this Office of Legal Counsel opinion -- have 11 you seen that? 12 MR. JORDAN: 13 THE COURT: No, Your Honor, I haven't. -- from 1995, and it directly addresses 14 this question and it's 1995 Westlaw 944018, and it directly 15 addresses this question and says that -- interprets these 16 statutes as authorizing a federal officer who is serving as a 17 special deputy marshal, or whatever it's called for purposes of 18 these joint task forces, to arrest -- to -- let me see, let me 19 make sure I get it right here. 20 (Pause in proceedings.) 21 THE COURT: 22 for violations of state law. 23 MR. JORDAN: 24 25 Yeah, to effectuate arrests of fugitives I would have no problem with that, Your Honor, but this is a search warrant. THE COURT: Well, I don't know how much of a stretch Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 21 of 47 1 it is to say that if they can effectuate an arrest of a 2 fugitive for violations of state law, why can't they 3 participate in the acquisition of a search warrant? 4 MR. JORDAN: They could participate in the execution 5 of a search warrant, but I don't think the FBI agent can be the 6 affiant, can be the one applying for it. 7 THE COURT: 8 MR. JORDAN: 9 THE COURT: 10 MR. JORDAN: 11 THE COURT: Why? Because California law says -California law. Yes. I thought you were bouncing back to 12 federal law and saying that the federal -- because the 13 District Court opinion that you were mentioning took the 14 position that as a matter of federal law, a federal officer 15 cannot do this because the federal officer is limited to 16 enforcing federal law. 17 And what I'm saying is I don't think that's right as a 18 matter of federal law. 19 law, a federal officer in Agent Carlson's position is 20 authorized to effectuate an arrest for violation of state law, 21 get a warrant for violation of state law; but it kind of begs 22 the question, I think, because I think that can only be true -- 23 he can only do that -- I mean, he may be authorized under 24 federal law to do it, but he can only do it if state law 25 authorizes him to do it as well. I think probably as a matter of federal 21 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 22 of 47 1 MR. JORDAN: I understand, Your Honor. I still draw a 2 distinction between authorized to participate and authorized to 3 be the affiant, but I'll leave it -- submit it on that point. 4 THE COURT: Okay. Why? Why is the -- I know you want 5 to leave it at that point, but why does that distinction 6 matter -- 7 MR. JORDAN: 8 THE COURT: 9 MR. JORDAN: Well --- from a federal law standpoint? Well, a law enforcement agent on the 10 street who has probable cause to seize somebody who's committed 11 a crime has authority under that statute to arrest him, but 12 that's much different from executing a search warrant where a 13 judge has to authorize it and you have to be the authorized -- 14 you have to be an authorized person to do it. 15 to get into this federalist argument. 16 THE COURT: To me that seems The effect of these federal statutes is to 17 authorize these federal officers to serve as state law 18 enforcement officers -- 19 MR. JORDAN: 20 THE COURT: 21 22 See, I disagree. I think that -- -- authorizing them under federal law to do that if it's okay with the state. MR. JORDAN: I guess, Your Honor, but -- and my point 23 is, of course, it's not okay with California in these 24 circumstances. 25 THE COURT: I mean, I think that's the big problem 22 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 23 of 47 1 here. 2 MR. JORDAN: 3 THE COURT: Exactly. Okay. So that's one -- I think that's one 4 problem we have and one kind of unanswered question that we 5 have at this point. 6 The next problem is Agent Carlson's affidavit. I mean, 7 let's look at the affidavit. 8 We have the information about the Ellis Street search, which 9 everybody agrees we should not consider. What do we have in the affidavit? So cross that out. 10 It seems to me the only two other things we have that 11 could potentially establish probable cause to search the phone 12 are, one, that Artis was a fugitive and he had outstanding 13 warrants; and, two, is this very cursory statement about 14 information received from a confidential informant with no 15 information explaining why we should believe what the 16 confidential informant says. 17 So on the first point, I mean, I guess there's some reason 18 to doubt at this point whether, in fact, there were outstanding 19 warrants for Mr. Artis; right? 20 I mean, in the affidavit Carlson said there were 21 outstanding warrants; Artis says that he does not think that 22 there were; and then in sort of a weird presentation that is 23 not -- you know, it's through lawyer argument but not actual 24 evidence, Artis says that at least two and maybe three of the 25 warrants were not outstanding anymore, that he pled guilty to 23 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 24 of 47 1 those offenses. 2 So, I mean, don't we have -- given the state of the 3 record, don't we at least have some fairly significant reason 4 to doubt whether there actually were outstanding warrants for 5 Artis at that point? 6 MR. LEONARD: I don't know, Your Honor. I'm not sure 7 what you're referring to when you say that those warrants 8 weren't outstanding anymore. 9 THE COURT: Well, Artis says in his declaration that 10 he didn't believe he had any outstanding warrants, and Artis 11 says in his brief through his lawyer -- and it would have been 12 much better had they submitted actual evidence of this as 13 opposed to just lawyer argument -- but he says in his brief 14 that he had pled guilty to two of the three offenses that 15 Carlson claims there was an outstanding warrant for -- 16 MR. LEONARD: 17 THE COURT: Okay. Well, I assume -- -- and that the third may have been 18 resolved, although they use some vague language about that in 19 their brief. 20 So, you know, don't we have -- it's already -- the 21 affidavit is already quite thin when you excise the 22 Ellis Street stuff, and then we have this reason to question 23 whether there really were outstanding warrants. 24 25 MR. LEONARD: As you pointed out, Your Honor, I think that's argument that counsel submitted. So I don't know that 24 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 25 of 47 1 we can doubt on that record that there are outstanding -- that 2 there were not, excuse me, outstanding warrants. 3 I would add, too, that it's not just the outstanding 4 warrants. 5 right? 6 criminal activity for this warrant. 7 It's the nature of at least one of the offenses; Because that ties to -- that ties to the suspected So it's the outstanding warrants and it's the nature of 8 the offenses, and I think -- or at least one of the offenses, 9 and I think that's a critical piece as well. 10 THE COURT: Okay. If there were not outstanding 11 warrants in particular for the offense, what was the offense? 12 Was it identity theft? 13 14 15 MR. LEONARD: One of the offenses was identity theft, yes. THE COURT: Right. If there were not outstanding 16 warrants, if that was wrong, clearly no probable cause; right? 17 Because all you'd be left with, then, was this very cursory 18 description of what a confidential informant said. 19 20 21 MR. LEONARD: Yeah. I think the outstanding warrants are critical, yes. THE COURT: Okay. So the outstanding warrants are 22 critical, and your position is that on this record there's no 23 basis to doubt that there were, in fact, outstanding warrants. 24 MR. LEONARD: 25 THE COURT: That's right, Your Honor. Okay. So let me ask you: Is there -- I 25 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 26 of 47 1 mean, why did this just come in the form of lawyer argument? 2 Why don't we have any evidence? 3 about -- you attempt to cast doubt on whether there were 4 outstanding warrants, but why don't we have any evidence on 5 that, or do we have evidence that I missed? 6 You have these assertions That's exactly the problem here. MR. JORDAN: The 7 problem is, and it wasn't this Assistant U.S. Attorney, but I 8 have been asking the Government for these warrants and I 9 haven't received any. I've called the Clerk's Office and they 10 say, yes, you know, these cases were resolved, but the 11 Government has to bring forth -- 12 THE COURT: 13 MR. JORDAN: 14 THE COURT: 15 MR. JORDAN: 16 Which Clerk's Office? San Francisco Superior Court. Okay. Apparently there was a probation matter; but, again, I don't have the warrants. 17 THE COURT: 18 MR. JORDAN: There was a what? He was on probation, so there could be an 19 issue whether there was a probation warrant, but I have asked 20 for them. 21 22 23 And I understand -- THE COURT: You mean a warrant on a probation violation? MR. JORDAN: For a probation violation, which is 24 completely different than what's stated in the warrant, in the 25 search warrant. 26 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 27 of 47 1 THE COURT: 2 MR. JORDAN: 3 THE COURT: 4 MR. JORDAN: Right. In the search warrant. Right. So it's hard to not give you a warrant if 5 it doesn't exist. 6 counsel. 7 the middle of this, and the new assistant came in and we have 8 gotten some discovery, including a new search warrant for my 9 client, which we'll talk about in a bit, but I never received 10 11 I don't have it. I have asked prior I understand she had a health issue and she left in copies of any warrants. It's the Government who's relying on these warrants to 12 establish the probable cause in the search warrant. 13 it's their responsibility to -- if Stonie -- 14 THE COURT: 15 MR. JORDAN: I think Carlson. -- Carlson had these warrants, then he 16 should have them, and there should be no problem in producing 17 them. 18 THE COURT: Well, I mean, all this makes me wonder if 19 we really do need a Franks hearing. 20 I mean, and one of the issues to explore at the Franks hearing 21 is what was your basis for believing that there were 22 outstanding warrants, you know; and, you know, perhaps also 23 what was your basis for believing that you had authority to get 24 a warrant in the first place to search the phone from a state 25 court judge. And, you know, it makes -- 27 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 28 of 47 1 2 That would be more of a Franks/Leon MR. JORDAN: hearing, I suppose, for that second point, but I agree. 3 THE COURT: 4 MR. LEONARD: 5 Yeah. Yeah. I think -- okay. Your Honor, may I be heard on one last point? 6 THE COURT: 7 MR. LEONARD: Sure. I think there is an overarching point 8 that we're overlooking here, and that is the defendants' status 9 as fugitives. 10 11 Now, for purposes of this argument, I'm going to assume that, indeed, they were fugitives at the time. THE COURT: No, and I think you're right that -- I 12 think what I would say is that even if you take away the 13 Ellis Street -- the information from the Ellis Street search 14 and you look at the affidavit and you say, "Okay, there were 15 these outstanding warrants," and if Mr. Artis truly was a 16 fugitive at the time -- okay? -- then you say, "All right, 17 there are these outstanding warrants. 18 identity theft. 19 informant that is very sketchy but is corroborated by the 20 outstanding warrant," and you have the fact that this fugitive 21 ran, then I think the totality of that is enough to establish 22 probable cause to search the phone, probably both for evidence 23 of identity theft and to figure out, you know, where the 24 fugitive is. 25 One of them was for We have information from a confidential MR. LEONARD: Where he is, right. 28 29 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 29 of 47 1 THE COURT: So I think that's -- I tend to agree with 2 you about that, but I think the problem is that, you know, 3 everything from Agent Carlson is so sketchy. 4 frankly, not sure, you know -- you know, I think we need to 5 hear from Agent Carlson on the warrants and on everything else. 6 I mean, I'm, And, you know, I don't know if -- I don't know if -- we 7 might also hear from him a little more -- maybe without 8 disclosing the identity of the confidential informant we might 9 hear from him a little more about why the confidential 10 informant was reliable or a little more information about the 11 confidential informant. 12 I'm not sure. I guess what I would say about the confidential informant 13 is that if there were, in fact, outstanding warrants, 14 particularly for the identity theft, then I don't -- I think 15 that what is included in the affidavit about the statement from 16 the confidential informant, combined with the fact that there 17 were outstanding warrants and combined with the fact that Artis 18 ran, probably is enough. 19 further exploration of, you know, the confidential informant. 20 That's my tentative inclination. 21 And so there doesn't need to be any But I think we probably need to hear from Agent Carlson. 22 I think we need to have a Franks hearing, and you're free to 23 ask him -- you know, explore the issue of good faith too. 24 mean, I'm sort of -- I will say that I'm skeptical that the 25 good faith exception could apply if this was a bad warrant, if I Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 30 of 47 1 he was never authorized under California law to get this 2 warrant. 3 haven't dived into that issue yet either. 4 I'm skeptical of that but, you know, that's -- but I MR. LEONARD: Okay. One last point, Your Honor. 5 Maybe this -- just before we commit to a Franks hearing, I 6 think we assumed a little too much about what is required in 7 terms of process, probable cause, in the pursuit of a fugitive. 8 And I think a case that the Ninth Circuit just decided two days 9 ago is illustrative on this point, and it's United States 10 versus Johnson. 11 it. 12 I don't know if the Court had a chance to read I have copies here. And it's about parolees, so I will start out of the gate 13 recognizing that parolees are probably in a different status 14 than a fugitive; but in United States versus Johnson, the panel 15 just two days ago said that parolees have a diminished 16 expectation of privacy like fugitives do, and that the police 17 officers in that case had no obligation whatsoever to seek a 18 search warrant to go inside that parolee's phone. 19 versus California didn't apply because of the diminished 20 expectation of privacy; right? 21 So Riley So parolees/fugitives, maybe a little bit different, but I 22 think we all agree that the reasonable expectation of privacy 23 that a fugitive should expect like a parolee is diminished, 24 and -- 25 THE COURT: But why didn't you put in evidence that he 30 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 31 of 47 1 was a fugitive? 2 question in their papers. 3 would have been really easy for you to put in evidence, actual 4 hard evidence, that he was a fugitive and that there were 5 outstanding warrants. 6 MR. LEONARD: 7 Like, it seems like it probably And that was my mistake, you're right, Your Honor, and I accept responsibility for that. 8 9 I mean, you know, they called that into THE COURT: So let's hear from Agent Carlson on all of that. 10 MR. LEONARD: 11 THE COURT: Okay. Now, if this was a bad warrant and if the 12 evidence from it needs to be excluded, does that sort of set 13 off -- does that set off a chain of dominoes that basically 14 makes all this -- like, resolves -- requires the exclusion of 15 all the other evidence that's been discussed in all the other 16 filings? 17 18 19 MR. JORDAN: I would think so, Your Honor. That would be our position. One thing would be whether a subsequent search was 20 attenuated by a different affidavit; and as I mentioned, I only 21 just got a new search warrant I think this week, which I thank 22 the Government for but I hadn't got it beforehand. 23 really looked at it. 24 information, which I believe was tracker information about 25 Mr. Artis' whereabouts, that that might be attenuated if that I haven't So they may have an argument for that 31 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 32 of 47 1 2 second warrant isn't tainted. Without looking at the warrant closely, I can't really 3 tell Your Honor which way I would argue on that; but the other 4 evidence that directly flowed from going into the cell phone -- 5 the pictures, the interviewing of the witnesses at the shooting 6 range, which they wouldn't know about if they didn't see the 7 photos -- all that would have to go, I would think. 8 9 THE COURT: By the way, I mean, it does seem to me, given the circumstances, that we need to do something to make 10 sure that everything that could conceivably be related to these 11 motions is turned over to the Defense before we proceed with 12 the Franks hearing, even if the disclosure is earlier than the 13 Government is accustomed to making it. 14 So, you know, I don't know how to deal with that other 15 than maybe to say that the Government is ordered to produce, 16 you know, all information that could conceivably be relevant to 17 these motions to the Defense before the Franks hearing. 18 MR. JORDAN: So that, Your Honor, would basically go 19 to my motion to disclose the confidential informant and all the 20 other materials there in a separately filed motion. 21 THE COURT: Yeah, except that I think -- like I said, 22 I think that if the -- if there -- you know, the one issue -- 23 or one of the issues I agree with Mr. Leonard on is that if 24 there is -- if Mr. Artis was, in fact, a fugitive, particularly 25 for identity theft, then I don't think we need to look further 32 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 33 of 47 1 at the confidential informant because I think that the 2 information provided from the confidential informant in the 3 affidavit, though sparse, is fine because it's corroborated 4 basically. 5 6 until the Franks hearing, and so -- 7 THE COURT: 8 MR. JORDAN: 9 But that's a decision you won't make MR. JORDAN: Right. -- I don't know if you want me to say "Now I need the informant." I prefer to have it ahead of time 10 and do one Franks hearing and be prepared for that. 11 to be the most efficient way. 12 THE COURT: That seems I mean -- It certainly seems to be efficient, but 13 the default is that you don't -- you know, you don't turn 14 over -- you don't disclose the identity of the confidential 15 informant at this stage unless it really needs to be disclosed. 16 And if, you know, the Franks hearing sort of definitively 17 establishes that Mr. Artis was a fugitive, particularly on the 18 identity theft count, that probably is the end of the matter. 19 So I don't know. I would sort of defer to the Government. 20 I'm sure the Government -- sort of I assume -- I think I know 21 what you're going to say but, I mean, if the Government thinks 22 that it would be more appropriate to, you know, and more 23 efficient to proceed by just having a hearing on everything, 24 including the confidential informant, we can do that; or, you 25 know, the Government can attempt to, you know, establish the 33 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 34 of 47 1 validity of the warrant or the validity of the search first 2 before disclosing, you know, in an effort to avoid disclosing 3 the confidential informant. 4 MR. LEONARD: Well, Your Honor, can I propose this? 5 Because, tell me if I'm wrong, it sounds like what the Court is 6 really interested in is confirmation that indeed Mr. Artis was 7 a fugitive. 8 9 THE COURT: And confirmation that -- and I'm interested in further exploring whether Carlson had authority 10 under California law to get this warrant from a state court 11 judge. 12 MR. LEONARD: I'm just thinking the first, we could 13 get you with documentation; the second, I don't know that 14 Carlson is going to know the answer to. I mean, it just seems 15 to me like a technical legal question. He's probably going to 16 say "I'm part of this" -- I don't know what he's going to say, 17 but -- 18 THE COURT: I think there are enough irregularities 19 here and enough concerns about Agent Carlson's conduct that 20 there should be a Franks hearing and that they should be able 21 to explore these issues with him. 22 The only question that I have is whether we should allow 23 them to explore the confidential informant issue at the same 24 time or we should put that off and only do that if necessary. 25 So what's your view on that? 34 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 35 of 47 1 2 not. 3 4 5 As you predicted, I would ask that we MR. LEONARD: THE COURT: Okay. That's fine. That's fine. So when are we going -- so when should we have the Franks hearing? 6 Well, with a lot of counsel and the MR. LEONARD: 7 holidays, I suspect we're going to have to figure out our 8 schedules, Your Honor. 9 I don't know, Your Honor. MR. JORDAN: Would you like 10 us to confer and come back and file something with the Court 11 and do that? That might save some time here. 12 THE COURT: 13 MR. JORDAN: 14 15 year? Sure. That would be fine. You're thinking something after the new Perhaps January-February? THE COURT: I don't care. What I want is -- I mean, 16 it could be December also, but what I want is the Government to 17 make absolutely sure that other than the identity of the 18 confidential informant, it has turned over everything to the 19 Defense that could be relevant to these motions. 20 the Government -- and I want to order the Government to do that 21 even if it entails turning things over that it usually does not 22 turn over until the eve of trial. 23 And I want So is that clear? 24 MR. LEONARD: 25 THE COURT: It is perfectly clear, Your Honor. And I want to make sure the Government has 35 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 36 of 47 1 time to be very thorough about that and make sure it's 2 providing everything. 3 MR. LEONARD: And I think it would be appropriate for 4 us to all meet and confer after this hearing to tie up any 5 loose ends on that. 6 THE COURT: 7 MR. JORDAN: 8 Okay. And I see Mr. Gruel to my left. I know he's asked for -- 9 MR. GRUEL: Stage left. 10 MR. LEONARD: 11 wants to join in about that -- -- a Franks hearing also, so I bet he 12 MR. GRUEL: 13 MR. JORDAN: 14 THE COURT: Sure. 15 MR. GRUEL: Your Honor, I've been listening to the Your Honor --- if this is a good time for that. 16 Court's inquiries and listening to my colleagues -- or 17 colleague, and I concur essentially with everything that he 18 says. 19 I'm assuming, Your Honor, that when you talk about the 20 Franks hearing, you're including my client, Mr. Hopkins, in 21 that. 22 material misrepresentations, and I'm assuming that you're 23 granting that. 24 25 We asked -- we actually asked for that based on some THE COURT: I will tell you that I'm quite skeptical of your argument, but since we're having a Franks hearing, if 36 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 37 of 47 1 2 3 you want to explore that, I'll allow you to explore it. MR. GRUEL: Perfect. Thank you, Your Honor. Your Honor was talking about the things that could be 4 disclosed sooner rather than later. 5 Henthorn request of Stonie Carlson, which is a request of his 6 personnel file for any previous times of any type of issues 7 with respect to his veracity; and, likewise, any Jencks 8 material that -- I don't know if he testified in the Grand Jury 9 in this case or testified in any other cases where his One of them I would make a 10 credibility was called into question as an agent of the FBI or 11 the task force that we're talking about. 12 THE COURT: 13 MR. LEONARD: 14 THE COURT: Okay. 15 MR. GRUEL: All right. 16 THE COURT: So that will be part of the discovery that 17 18 Any objection? I mean, he'll -- no. No, Your Honor. Granted. Thank you, Your Honor. the Government turns over. Your Honor, did you want -- I mean, we MR. JORDAN: 19 can get back to you, perhaps, within 14 days with a proposed 20 schedule. 21 THE COURT: 22 MR. LEONARD: 23 MR. JORDAN: 24 MR. LEONARD: 25 THE COURT: Sure. That sounds fine. Okay. That's good. No objection from the Government. Okay. So we'll do that. 37 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 38 of 47 1 Do you want to have a further status conference in 14 days 2 or do you want to just submit a stipulated schedule? 3 want to waste everybody's time coming in. 4 MR. LEONARD: 5 submit a stipulation. 6 THE COURT: 7 MR. JORDAN: 8 THE COURT: 9 I'll be out of town. Okay. I don't I prefer to just That's fine. That's fine, Your Honor. Is there anything else we should talk about now, like severance, for example, or something? 10 MR. JORDAN: Well, Your Honor, it seems everybody 11 agrees there should be a severance, so maybe Your Honor would 12 want to set with the -- I'm not sure the Government disagrees 13 with our proposal of two trials, though. 14 that. 15 THE COURT: Yeah. I'm unsure about So my -- you know, I forgot my 16 notes. 17 can remember which option was my favorite. I had written out three options, and let me see if I 18 MR. JORDAN: 19 THE COURT: 20 MR. JORDAN: Your Honor, can I just timeout, go back? Sure. I forgot -- and I thank Mr. Dressler for 21 reminding me -- that one of the attorneys just had brain 22 surgery and is out for four weeks. 23 THE COURT: 24 MR. JORDAN: 25 Oh, yeah. So maybe we'd have four weeks to get something to you because she did have a serious operation. 38 39 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 39 of 47 1 THE COURT: 2 come out of it okay? 3 MR. JORDAN: 4 5 her. Yeah. Yeah. Is she -- but is she -- has she Mr. Dressler says he talked to It was for an aneurysm. MR. DRESSLER: I did. She's recovering and she can't 6 even drive for at least three or four weeks, but I expect maybe 7 five weeks out or six weeks out she'll be ready to roll. 8 9 THE COURT: Well, give her my best, please. And that's fine if you want to wait in light of that. 10 course, if you want to wait four weeks to submit the 11 stipulation, that's fine. 12 Of You know, I suppose we could talk about the severance 13 issue later, but let me see if I can remember which was the 14 option that I thought, and I don't -- I think it was, again, 15 not something that anybody proposed, but I think it was -- let 16 me see if I can remember. 17 18 Who is the defendant who has the drug counts? Is that Mr. Hopkins? 19 MR. JORDAN: 20 MR. GRUEL: Mr. Hopkins. 21 THE COURT: Okay. Chanta Hopkins, Your Honor. I believe that the option that I 22 liked the best was to try -- to have a separate trial for 23 Mr. Hopkins on the drug counts and then to have a trial for all 24 the other defendants on everything else. 25 MR. JORDAN: So I think -- 40 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 40 of 47 1 MR. GRUEL: 2 MR. JORDAN: 3 I would object to that, Your Honor. Mr. Gruel has the objection because of the gun counts. 4 MR. BORO: Your Honor, Mr. Holmes also would object to 5 that. 6 factual connection between the gun count in one and the credit 7 card conspiracy. 8 that in. 9 different set of acts. As we point out in our joinder on severance, there's no So we believe it's highly prejudicial to lump It's a different time period really. It's a It has nothing to do with credit cards. 10 The only connection offered by the Government was the 11 Count 3 that charged the use of the false identity to rent the 12 guns, and Your Honor has now dismissed that count. 13 against defendant Artis. 14 count be tried separately. 15 probably a trial of a couple days. 16 MR. GRUEL: That was So we would request that the gun It's a very short matter. It's And, frankly, Your Honor, the reasons why 17 co-defendants asked for severance from Mr. Hopkins and the drug 18 charges are identical to the reasons Mr. Hopkins would not want 19 to be in trial with the co-defendants on the gun charges. 20 the prejudicial overspill that comes from that. 21 kind of carries negative inferences regardless of how the Court 22 tries to compartmentalize that. 23 It's Guns and drugs So that's my objection to having Mr. -- Mr. Hopkins has no 24 problem being tried alone on his case. 25 good to be tried separately on the drugs and then go with the It does not do him any 41 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 41 of 47 1 co-defendants on the credit card and the firearms. 2 MR. LEONARD: The difference in the case of 3 Mr. Hopkins, Your Honor, is that he is charged in the 4 conspiracy for the credit card fraud and the drugs, the 5 evidence of which will overlap because of the search of his 6 apartment, which found evidence of both. 7 judicial economy to have those two tried together; and I think 8 the issues about spillover, about influence on the jury, are 9 issues that we see in countless cases, and you deal with those 10 11 So it really serves with jury instructions. So if the Court is inclined to do two trials, I think the 12 better proposal is to try the gun counts against those 13 defendants, and then the conspiracy and the drugs together, 14 because in particular the overlap of the evidence in those 15 latter two. 16 THE COURT: Okay. 17 decision on that now. 18 again. 19 after the -- We'll have an opportunity to discuss it Let's see what kind of trial, if any, we're having 20 MR. JORDAN: 21 THE COURT: 22 be talking about right now? 23 Well, I'm not going to make a MR. JORDAN: The Franks hearing may be dispositive. So is there anything else that we ought to Well, Your Honor, as long as you're not 24 setting a trial date, which I don't think you are, then we 25 don't have to talk about the deadlines for the discovery. I Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 42 of 47 1 appreciate that the new assistant has gone through things and 2 given us new materials, so that's good, and so we'll keep 3 working with him. 4 There might be some more motions to be filed from the 5 defendants since we've gotten new discovery, but we can say 6 that in the statement we're going to give you. 7 The 404(b) can wait. 8 you've talked about. 9 motion to suppress. 10 Mr. Gruel's motion. 11 MR. GRUEL: 12 Discovery can wait. The severance You've talked about the informant and the So I think the only thing left is perhaps Right. Your Honor -- 13 THE COURT: Which motion is that? 14 MR. GRUEL: On behalf of Mr. Hopkins, we basically Sorry. 15 brought the same type of motions that Mr. Donnell Artis brought 16 as well, and we asked specifically for a Franks hearing that 17 Your Honor is talking about. 18 So I don't need to belabor that. But we also joined in and brought to the Court's attention 19 many of the facts that we've already talked about, and that is 20 Stonie Carlson, his veracity, his misrepresentations or his 21 problems, as we've referred to them. 22 But one thing I'll point out to Your Honor with respect to 23 Rule 41, which I saw in the second declaration -- Rule 41 being 24 that you have to use a federal magistrate for a search warrant 25 or federal judge -- it's clear in Stonie Carlson's second 42 43 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 43 of 47 1 declaration filed after the Defense had filed all these motions 2 that he was already working with the federal prosecutor I think 3 over in Oakland. He makes reference to talking to -- 4 THE COURT: You mean when he sought the state warrant? 5 MR. GRUEL: Yes. 6 THE COURT: When he sought the warrant from the state 7 8 9 court judge? MR. GRUEL: In March of 2016, before any of these search warrants were put into play, he says he talked with an 10 undisclosed AUSA about what had been found at Mr. Artis' 11 girlfriend's apartment. 12 as a former prosecutor, as well as Mr. Jordan, that there's an 13 AUSA working on the case. 14 THE COURT: That tells me, based on my experience Maybe. I mean, maybe he was pitching the 15 case to the U.S. Attorney's Office and they weren't interested 16 yet, and so there wasn't an active federal investigation and 17 that's why he got the state warrant. 18 MR. GRUEL: We'll find out in the Franks hearing, but 19 I think it's more nefarious than that, and that's why I 20 mentioned in my motions to suppress everything found because 21 this was the time they used some of the information found at 22 Mr. Artis'. 23 I don't know if it's the same confidential informant. 24 There's at least two references to a confidential informant. 25 don't know if it's the same one, but they then used this I Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 44 of 47 1 information to go to an Alameda Superior Court judge to get 2 this StingRay device what they believed to be on Mr. Hopkins' 3 phone to try to locate him outside of Alameda in San Francisco. 4 So we have a full -- another issue that has arisen and 5 that is the scope -- in addition to everything Your Honor has 6 talked about -- the scope of the state warrant that they got 7 out of Alameda. 8 San Francisco, a whole different county. 9 they're going to be using a Superior Court judge in one county, They used it indiscriminately over in So it seems to me if 10 it's limited to the boundaries of over in the East Bay. 11 another issue that we've raised with respect to scope. 12 13 14 That's We also raised in that issue, Your Honor, or in our own motion, a very glaring omission by Mr. -- or a material -THE COURT: It sounds like you're just kind of 15 previewing the stuff that you want to be exploring in the 16 Franks hearing. 17 MR. GRUEL: Yes. 18 THE COURT: You're not asking for a ruling from me on 19 anything right now. 20 MR. GRUEL: No. 21 THE COURT: Okay. 22 MR. GRUEL: Your Honor, we filed these motions. That's fine. 23 There's numerous exhibits. 24 that what's going to be presented at this Franks hearing is 25 going to be larger in scope than the concerns of Mr. Jordan. I just wanted the Court to be aware 44 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 45 of 47 1 We have also plenty of concerns with respect to the use of 2 the StingRay or the -- what is it called? -- the cell phone 3 simulator. 4 THE COURT: 5 skeptical of your argument. 6 but, you know, the case for a Franks hearing on that I think is 7 weaker and I'm not going to let you go on forever on that 8 during the Franks hearing. 9 MR. GRUEL: Right. And as I said to you, I'm fairly I will allow you to explore it But the same issues with respect to 10 probable cause exist, the scope of the warrant. 11 went inside his residence, or waited till -- they used the 12 simulator while it was in practice while he was inside his 13 residence, his home. 14 about, the privacy interests and the privacy interests in one's 15 home, is at play with respect to Mr. Hopkins. 16 They actually And so the things that you're talking They were using the simulator while he was inside his 17 apartment, essentially violating the Fourth Amendment as we 18 will argue and have argued and will show through the Franks 19 hearing as well. 20 So I just wanted Your Honor to know that we had these 21 issues. 22 hearing. We've presented them. 23 THE COURT: 24 MR. LEONARD: 25 We hope to explore them at the Okay. Well, now I'm a little nervous about the Franks hearing, Your Honor, because a Franks hearing -- 45 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 46 of 47 1 THE COURT: 2 MR. LEONARD: I am too. -- is for the purpose of determining 3 whether or not the affiant made material -- and that's 4 critical -- material to the probable cause finding 5 misrepresentations or omissions so -- 6 7 THE COURT: I understand that. It can be controlled at the Franks hearing. 8 MR. LEONARD: 9 MR. GRUEL: Thank you, Your Honor. Well, I could be more specific than that, 10 and I can direct the Court and counsel to paragraph 10 where 11 Stonie Carlson said he had Artis' phone in his -- well, had 12 possession of it and that he was receiving incoming calls while 13 in possession. 14 15 THE COURT: looked at that. I'm familiar with the argument. I have I'm telling you I don't -- 16 MR. GRUEL: All right, Your Honor. 17 THE COURT: -- it does not strike me as material, but 18 I'll allow to you explore it a bit with Agent Carlson since 19 he's already going to be here. 20 MR. GRUEL: Very good. 21 THE COURT: Okay. 22 MR. JORDAN: 23 MR. LEONARD: 24 THE COURT: 25 Thank you, Your Honor. Anything else? I don't think so, Your Honor. Not from the Government. Okay. So we'll look forward to hearing from you in a few weeks on how we're going to proceed. 46 Case 3:16-cr-00477-VC Document 188 Filed 12/08/17 Page 47 of 47 1 MR. JORDAN: 2 MR. LEONARD: 3 MR. GRUEL: 4 MR. BORO: Thank you, Your Honor. Thank you, Your Honor. Thank you, Your Honor. Thank you, Your Honor. 5 (Proceedings adjourned at 11:07 a.m.) 6 ---oOo--- 7 8 9 CERTIFICATE OF REPORTER I certify that the foregoing is a correct transcript 10 11 from the record of proceedings in the above-entitled matter. 12 13 DATE: Friday, December 8, 2017 14 15 16 17 _________________________________________ 18 Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR U.S. Court Reporter 19 20 21 22 23 24 25 47