emptywheel

LEwis: on plain error rule not time to announce a new rule. Piersol: overhearing murder, exigency. What if you find money laundering evidence? You just go ahead and prosecute it? Lewis: If evidence of crime, does not require min. Other procedures limit. [Claims secret]

Note, what Piersol just described IS THE MANAFORT CASE.

Lewis: Plain view. While there is authority to support based on plain view, minimization procedures really supply the answer in FISA context. Plain view operates differently in FISA context, bc of back end of case. HE'S DEFENDING THE TOR APPLICATION HERE.

Piersol: We don't know how it was encountered. As District, if I don't know enough I'm going to have expert for myself for court if that issues gets presented. Lewis; District may want to know, if challenge is raised. Piersol: Unusual case in District bc there's no advocate

Piersol is a District Judge in ID, not a circuit judge. He's talking with the experience of a judge who has had to stand in for the adversarial position of the defendant. Lewis: District review not done in vacuum.

Lewis: District review was not an abuse. Piersol: We have to review what District court did. Adopted order verbatim which you submitted. We're reviewing de novo, not abuse of discretion. Lewis: Multiple Circuits have held. Piersol: We're this one tho.

Piersol: so we're supposed to disregard precedent in this circuit? Lewis: There is no precedent. Every circuit that has reached standard determined abuse of discretion. Franks: Defendant had access to a great deal of information.

Lewis: WRT sufficiency of evidence. Piersol: they didn't argue that except in briefs. Lewis; I'll move on. Cleared counsel should have review. FISA says necessity up front. [Cline's going to hit this I bet.]