[00:00:19] Speaker 00:
Good morning, may it please the Court.

[00:00:20] Speaker 00:
My name is David Schlesinger.

[00:00:22] Speaker 00:
I represent the Appellant, Alfred Velasquez.

[00:00:24] Speaker 00:
Before I address the issues that we've raised in our opening and reply briefs, I would like to address some further details, or at least note that I'd like to fill in some further details regarding the letter that the government sent to the Court dated March 22nd.

[00:00:43] Speaker 00:
Only two days before that I, for the first time, learned about the impeachment material that that letter references.

[00:00:50] Speaker 00:
And I should note that I'm trying to be very circumspect about the details because both Mr. Rahe and I are subject to a protective order that was entered in a separate case in the Southern District of California.

[00:01:02] Speaker 00:
The impeachment material, as the letter notes, does concern, and I'll quote from it, the agent who testified as an expert witness for the government.

[00:01:11] Speaker 00:
So I can't

[00:01:12] Speaker 00:
mentioned that specifically, but as the court knows from its careful review of the excerpts of record, there's only one such witness who testified during the government's case in chief.

[00:01:25] Speaker 03:
Have there been any discussions between counsel as to what should be the result of this new material?

[00:01:34] Speaker 00:
There have been, Your Honor.

[00:01:35] Speaker 00:
I spoke with Daniel Zip, who is the head of the Appellate Unit for the Criminal Division in the U.S.

[00:01:41] Speaker 00:
Attorney's Office in the Southern District.

[00:01:43] Speaker 03:
Is there any agreement on what should be done?

[00:01:46] Speaker 00:
There has not been, unfortunately, Your Honor.

[00:01:48] Speaker 00:
My proposal is that Mr. Valeska is moved to remand the

[00:01:54] Speaker 00:
the case to the district court for the limited purposes of allowing him to explore the possibility of seeking discovery regarding the approximately 257 pages I think in the

[00:02:09] Speaker 00:
discovered materials thus far handed over to us, produced to us, we can at least explore the possibility of exploring discovery so that we could file potentially a motion for a new trial under Rule 33.

[00:02:24] Speaker 00:
We're still within the three-year period that Rule 33 provides for for newly discovered evidence following

[00:02:31] Speaker 00:
a verdict.

[00:02:32] Speaker 00:
The verdict in this case happened most recently in July 29, 2022.

[00:02:36] Speaker 00:
So we're still within the three.

[00:02:38] Speaker 00:
Your window, we are very interested in following such a motion.

[00:02:42] Speaker 00:
Mr. Rahe reiterated to me a few minutes ago that the government would oppose such a motion.

[00:02:47] Speaker 00:
Mr. Zip told me earlier that that would be the case.

[00:02:51] Speaker 03:
Okay, we'll ask him about that.

[00:02:53] Speaker 00:
Certainly, Your Honor.

[00:02:54] Speaker 01:
Given that you haven't had any discovery, you just have some 250 pages.

[00:02:59] Speaker 01:
Can you pencil that out and indicate where that would change any of the issues before this Court?

[00:03:05] Speaker 00:
It does not directly impact the issues before this Court today, Your Honor, and that was represented through the letter that Mr. Zip wrote to this Court.

[00:03:16] Speaker 00:
What I can say is that based on my preliminary review of that discovery, and again keeping in mind that I'm subject to a protective order,

[00:03:23] Speaker 00:
We do think that there is some indication that the conduct in question by this particular agent may have accrued before the trial occurred.

[00:03:33] Speaker 00:
And we are curious in finding out more about precisely when the government, more specifically, why I don't think I should identify the agency,

[00:03:45] Speaker 00:
one of the executive branch agencies learned about, has stated that it learned about this conduct in 2023.

[00:03:53] Speaker 00:
We would like to investigate that further to know precisely when that occurred because of the obvious implications under Brady and Giglio and this progeny.

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So I think that's where we stand as of today.

[00:04:08] Speaker 00:
So I can represent that we are very interested in filing such a motion for remand.

[00:04:12] Speaker 00:
The government is very interested in opposing such a motion.

[00:04:17] Speaker 01:
Is this court the right court for that decision?

[00:04:21] Speaker 01:
I mean, do we really have the power to remand something that's basically an evidentiary issue if anywhere before the district court?

[00:04:31] Speaker 00:
And we would certainly brief this in any motion that we would file hopefully soon if it does happen.

[00:04:37] Speaker 00:
This court would have the authority to at least remand for the limited purpose of allowing the district court to explore that issue.

[00:04:45] Speaker 00:
such circumstances occur both in criminal cases and immigration cases?

[00:04:51] Speaker 03:
Depending on what witness it is and what was found out, it could affect the analysis of at least one of the issues on appeal.

[00:05:03] Speaker 00:
Potentially, Your Honor, I do know that it doesn't directly implicated, but it is at least sufficient such that there are Rule 33 implications regarding the opportunity to have impeached that particular witness regarding his credibility, his

[00:05:22] Speaker 00:
his pension for deceit, for dishonesty.

[00:05:26] Speaker 00:
And again, I'm being very careful about my language because I do not want to contradict the Detective Order.

[00:05:31] Speaker 02:
Understood.

[00:05:31] Speaker 02:
So I guess I'm a little bit confused in terms of what we should do as a panel after today.

[00:05:35] Speaker 00:
Sure.

[00:05:35] Speaker 02:
Because you're not saying I'm filing a motion, you're saying I might file a motion.

[00:05:39] Speaker 00:
I mean, I can't say I'm 100% definitively going to file a motion, but there's enough in the discovery materials, Your Honor, that I can represent that I'm strongly inclined to do so, but I don't want to stand before you, given my duty of candor to the Court, and say that I'm 100% certain that I'm going to file a motion.

[00:05:57] Speaker 00:
What I can say is I'm strongly inclined to file it.

[00:06:00] Speaker 03:
Within what period of time?

[00:06:02] Speaker 03:
I mean, if we were to, say, defer a decision pending your opportunity to file a motion with this court, what sort of time frame do you anticipate?

[00:06:17] Speaker 00:
I hope to do it as soon as possible, Your Honor, possibly as soon as Friday.

[00:06:20] Speaker 00:
I just need to work out the logistics with the government because it's quite possible, and I suspect Your Honor should be curious.

[00:06:27] Speaker 00:
to see the materials in question, but we would have to file those under seal.

[00:06:30] Speaker 00:
And so I would need to work out the logistics with Mr. Zip, with Mr. Rahe, to make sure that that material is properly lodged before the court in a way that's consistent with the protective record.

[00:06:39] Speaker 03:
So 30 days would be ample, it sounds like.

[00:06:41] Speaker 00:
It would be more than enough time, Your Honor, and I think we could do it well before then.

[00:06:45] Speaker 00:
And I appreciate your suggesting that.

[00:06:48] Speaker 00:
If there are no further questions regarding this threshold, the preparatory issue, I'd like to

[00:06:55] Speaker 00:
transition to the first issue that from our briefing that I'd like to discuss today with the court's indulgence, which is the valuation testimony from Special Agent Keisel of Homeland Security Investigations.

[00:07:10] Speaker 00:
As we've discussed in our briefing, this court has never definitively addressed whether

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retail valuation of narcotics imported into the United States is probative or relevant or in any way useful in addressing

[00:07:32] Speaker 03:
Importation only counts counsel one of the cases and unfortunately I didn't write write down And I don't recall which one of them sure the cases from this court have all been about trafficking as you point out But at least one of the cases cited an out-of-circuit decision with approval that did not involve trafficking but involved importation and I'm not sure why

[00:08:00] Speaker 03:
we would treat those differently because the main point is, you know, nobody in their right mind would hand, you know, something worth potentially a quarter million dollars or something or more to an unknowing person.

[00:08:19] Speaker 03:
And that's the reasoning behind those cases.

[00:08:22] Speaker 03:
So why doesn't that apply equally?

[00:08:24] Speaker 00:
I do have the case that you're referring to, Your Honor.

[00:08:27] Speaker 00:
It's the United States v. Agan from the Eighth Circuit.

[00:08:30] Speaker 00:
It was cited by this court in O'Boyhee.

[00:08:33] Speaker 00:
We think that Agan is not apposite because the only issue that the appellant raised in Agan was whether the

[00:08:41] Speaker 00:
the expert witness from the government was foundationally competent.

[00:08:46] Speaker 03:
That doesn't really answer the gist of my question, though, because I don't understand why the logic would be any different in an importation case than a trafficking case when the idea is, is there a fair inference to be drawn that someone wouldn't hand over

[00:09:04] Speaker 03:
secretly to someone who had no idea that their car was carrying an enormous amount of, you know, very valuable stuff.

[00:09:15] Speaker 00:
We acknowledge, Your Honor, for the purposes of an importation-only count, that the wholesale value of the narcotics would be relevant, and this Court has repeatedly held that that specific type of valuation, the wholesale valuation, is relevant.

[00:09:31] Speaker 00:
However, here in this case in which there was no evidence proffered by the government whatsoever regarding

[00:09:37] Speaker 00:
what would happen following the importation of narcotics into the United States.

[00:09:42] Speaker 00:
There was no structure evidence proffered.

[00:09:45] Speaker 00:
There was no evidence obtained from Mr. Velasquez's two cell phones.

[00:09:50] Speaker 00:
He did not inculpate himself during his post-arrest interrogation.

[00:09:54] Speaker 00:
So there was virtually no, literally no evidence, Your Honor, I shouldn't even say virtually, there was literally no evidence here regarding what was going to happen to the narcotics once they entered the United States.

[00:10:06] Speaker 03:
I suppose in certain cases, Your Honor, if there were that kind of structural evidence regarding the organization and the... I still don't understand why that matters because the question is this person's, you know, knowledge and the implication remains the same, that those who... that either he did it himself at the starting end or that someone supplied it to him

[00:10:34] Speaker 03:
But it's still, what happens to it next doesn't really have anything to do with it, does it?

[00:10:42] Speaker 00:
It does, Your Honor, to the extent that here there are Rule 403 implications regarding the much higher valuation that was placed on the retail, the very hypothetical retail sale of the narcotic as opposed to the wholesale.

[00:10:57] Speaker 00:
value, and it was several multiples higher here.

[00:11:00] Speaker 00:
The high end of the wholesale valuation was a little bit under $140,000, whereas the high end of the retail valuation for the fentanyl in San Diego in July 2017 was more than $600,000.

[00:11:12] Speaker 02:
So doesn't your argument have to essentially be that without evidence of the organization or sort of the bigger scope of things going on, that the only fair inference is that this was personal use or something?

[00:11:25] Speaker 02:
If that's not the only fair inference, then I have no idea what the material distinction is here between wholesale and retail.

[00:11:32] Speaker 02:
The point is just relevance of does this person likely know that this is there or not based on its value.

[00:11:38] Speaker 00:
At least in this particular case, Your Honor, the material distinction is the difference in the valuations themselves.

[00:11:44] Speaker 01:
And so here, we're... But does that help you or hurt you if I have something that's even greater in value

[00:11:53] Speaker 01:
I think we can infer if it's brought into the United States, it's going to hit the streets.

[00:12:01] Speaker 01:
I have something that's potentially even greater than the wholesale value.

[00:12:05] Speaker 01:
Wouldn't that be greater knowledge of what one has?

[00:12:09] Speaker 00:
I would say in a particular case if there were some evidence supporting the defendant's knowledge that there would be retail sale of this narcotic in the United States as opposed to merely being warehouse and a stash house.

[00:12:23] Speaker 01:
What's the other purpose for bringing it in?

[00:12:26] Speaker 00:
It's simply that if you're dealing with an importation-only count, Your Honor, the wholesale value is the one that is most probative and relevant when there's no other evidence regarding how this organization cartel, so to speak, operates in the United States.

[00:12:45] Speaker 00:
We don't even know whether this particular fentanyl was

[00:12:48] Speaker 00:
destined to be cut up and sold on the streets.

[00:12:51] Speaker 00:
It might simply have been sitting in a warehouse, in which case the wholesale value is all that's relevant.

[00:12:57] Speaker 01:
Is that logical?

[00:13:00] Speaker 01:
That it would be imported having substantial value at the wholesale level, and then it would just be parked in a warehouse?

[00:13:09] Speaker 00:
We simply don't know, Your Honor, because there was no evidence proffered regarding anything.

[00:13:16] Speaker 01:
Is that a logical assumption?

[00:13:18] Speaker 01:
That it's just going to be parked?

[00:13:20] Speaker 00:
It could be under the circumstances, Your Honor, depending on the market at the time.

[00:13:24] Speaker 00:
But again, we don't know, because the government didn't proffer any such evidence.

[00:13:28] Speaker 00:
So we would just be speculating.

[00:13:30] Speaker 03:
Before your time runs out, I do have a question on one of the other issues.

[00:13:35] Speaker 03:
You have an argument under Rule of Evidence 106 about the rule of completeness and I frankly don't understand why it even applies because the initial statement was brought out by defense counsel on cross-examination and the rule appears to me to deal with preventing the opponent from introducing only a misleading portion of the statement.

[00:13:59] Speaker 03:
but not as sort of a stocking horse to allow the offering party to bolster its case with hearsay.

[00:14:08] Speaker 03:
Am I wrong that this was brought out by the defense counsel?

[00:14:13] Speaker 00:
It was brought up, Your Honor, but it wasn't brought up intentionally.

[00:14:16] Speaker 03:
Well, that seems to me neither here nor there.

[00:14:20] Speaker 03:
My question is whether Rule 106 applies when it's your own

[00:14:26] Speaker 03:
whether it only applies when it's something offered by the opposing party.

[00:14:30] Speaker 03:
That's how I've always understood it, and if I'm wrong, educate me.

[00:14:37] Speaker 00:
My understanding, Your Honor, is that if the opposing party, even if spontaneously in here it was contrary to a court order, mentioned the post-arrest statement, that it would have, at least indirectly, have been offered by the opposing party here, by the government.

[00:14:58] Speaker 00:
request, the defense counsel's request, was simply to have one additional clarifying sentence.

[00:15:04] Speaker 03:
Well, I know what the request was, but I'm asking about the application of the rule, because that is, as I understand it, what you're relying on as authority for your ability to introduce additional material.

[00:15:18] Speaker 00:
I agree, Your Honor.

[00:15:19] Speaker 00:
It's not the conventional circumstance in which the rule of

[00:15:22] Speaker 00:
But I think that under these unique circumstances in which the agent spontaneously mentioned one particular sentence from the statement, it was a very narrowly tailored request by defense counsel to simply… And you didn't move to strike, as I recall.

[00:15:43] Speaker 00:
Defense counsel did not formally move to strike.

[00:15:45] Speaker 00:
He only wanted to add that one additional clarifying statement, one additional clarifying sentence.

[00:15:51] Speaker 00:
I see that I'm over time.

[00:15:53] Speaker 00:
If there, at least for now, if there are no further questions, I'd be glad to submit, or at least try to reserve time for rebuttal, I should mention.

[00:16:01] Speaker 02:
We asked you a lot of questions about this late arising procedural issue, so we'll give you two minutes for rebuttal.

[00:16:06] Speaker 00:
I appreciate that, Your Honor.

[00:16:07] Speaker 00:
Thank you.

[00:16:16] Speaker 04:
Good morning, Your Honors.

[00:16:17] Speaker 04:
May it please the Court, Mark Rahe, for the United States to talk about that issue briefly.

[00:16:22] Speaker 04:
It's unfortunate the way that the timing of this turned out, but we want the Court to know that

[00:16:28] Speaker 04:
even if this had been turned over two or three months ago we would be taking the same position.

[00:16:32] Speaker 03:
I don't understand that frankly because if there is any possibility of a new trial why are we having this discussion of the issues that are here on appeal today because if there were a new trial

[00:16:47] Speaker 03:
All of this would be, it would pass out of the picture.

[00:16:50] Speaker 03:
I mean, they might or might not raise these same issues in a subsequent appeal.

[00:16:55] Speaker 03:
He might or might not be convicted.

[00:16:56] Speaker 03:
So I'm really at a loss to understand the government's reluctance to permit this to be aired out at the district court level.

[00:17:08] Speaker 04:
Well, and I understand that, Your Honor.

[00:17:10] Speaker 04:
I mean, our position basically in talking about under the same constraints of that protective order.

[00:17:17] Speaker 01:
What are those constraints?

[00:17:20] Speaker 01:
Where do they come from?

[00:17:21] Speaker 04:
Well, it was a protective order issued by a district judge in another case, Judge Hughes or Judge Hayes, and basically, you know, just involves employment.

[00:17:30] Speaker 04:
It's about employment misconduct.

[00:17:32] Speaker 04:
And what happened was the investigation began in February of 2023.

[00:17:35] Speaker 04:
This trial was in July of 2022.

[00:17:38] Speaker 04:
There was a finding of violation of internal agency rules.

[00:17:44] Speaker 04:
In the findings, we've already turned over, I believe, 289 pages of the discovery.

[00:17:50] Speaker 04:
Those findings only go back as far as August 31st of 2022.

[00:17:55] Speaker 04:
the government's position.

[00:17:57] Speaker 03:
But see, we can't, we're not in a position to rule on the relevance of that.

[00:18:02] Speaker 03:
But why shouldn't we give the district court an opportunity to do that before we spend additional time dealing with the issues that are here on appeal?

[00:18:11] Speaker 03:
And if the district court says no dice, no new trial, fine, we'll decide it.

[00:18:16] Speaker 03:
But isn't it kind of premature right now for us to do so?

[00:18:23] Speaker 04:
In all honesty, that sounds reasonable, Your Honor.

[00:18:26] Speaker 04:
I mean, I can't continue to argue the issues that we have here on appeal.

[00:18:30] Speaker 04:
I know at the beginning of defense counsel's presentation, I mean, I like that whole thing about giving him 30 days to file a motion to remand, too.

[00:18:40] Speaker 04:
So, you know, that would be an opportunity for us to point out some of these facts and to give the evidence.

[00:18:45] Speaker 04:
But, I mean, I'm here also.

[00:18:48] Speaker 04:
I'm happy to talk about the issues.

[00:18:51] Speaker 04:
that have been raised.

[00:18:52] Speaker 04:
But our position, again, credibility of this agent was never an issue.

[00:18:58] Speaker 04:
It was only about 401 and 403.

[00:19:00] Speaker 04:
There was never any dispute as to his calculations of the wholesale value of the retail value.

[00:19:07] Speaker 04:
Defense stipulated that it was fentanyl, that it was four and a half pounds.

[00:19:12] Speaker 04:
So our position, I mean, is to the extent that there would be any collateral issue on credibility that is a matter of law that wouldn't

[00:19:20] Speaker 04:
rise to the level of Brady, it wouldn't give any reason to undercut.

[00:19:24] Speaker 03:
Well, that's not for us to say.

[00:19:26] Speaker 03:
That's my problem.

[00:19:27] Speaker 04:
But I feel like that could be aired out in a motion to remand.

[00:19:33] Speaker 04:
So if the defense, I know he's made representation, he wants to move on this as quickly as possible.

[00:19:38] Speaker 04:
If he gets 30 days to file that, we can at least put that out.

[00:19:41] Speaker 04:
And if this court still feels like, hey, let the district court take its shake on that, we will live with that, obviously.

[00:19:50] Speaker 04:
But yeah, but you know, those were at least that was kind of a summary of why, you know, I'd want the court to know that it's not like something, you know, this all rose after the trial in the government.

[00:20:00] Speaker 04:
I mean, if we thought that this had any, you know, real effect on the trial, we wouldn't be taking that position.

[00:20:06] Speaker 04:
I at least wanted to let the court know.

[00:20:07] Speaker 03:
Well, credibility is always a sensitive question.

[00:20:10] Speaker 03:
And, you know, if you don't have information that touches on credibility, of course you don't raise it.

[00:20:18] Speaker 03:
But if you have it, you might, so.

[00:20:21] Speaker 04:
Oh, I hear you.

[00:20:21] Speaker 04:
I hear you.

[00:20:22] Speaker 04:
But, you know, it was very vigorously litigated in the records.

[00:20:27] Speaker 03:
But they knew then.

[00:20:28] Speaker 04:
On the 401 and the 403, correct.

[00:20:31] Speaker 04:
Correct.

[00:20:31] Speaker 04:
But, you know, leading, going into that issue, I mean,

[00:20:35] Speaker 04:
of course, the government would point out that the standard of view is abusive discretion.

[00:20:39] Speaker 04:
We've looked at the law here.

[00:20:42] Speaker 04:
I mean, if we put ourselves in the district court's shoes, yes, defense counsel's right that maybe there isn't one case that's limited from this court, precedentially, to importation.

[00:20:51] Speaker 04:
But what you see for 20 years, going back to the Golden case, the Kearney case that's cited in our briefs,

[00:20:58] Speaker 04:
This court has always found valuation relevant, relevant not just for intent to distribute, and we understand that wasn't charged here, but for proof of knowledge.

[00:21:06] Speaker 04:
And one important fact that we would point out, it's volume six of the excerpts of record, page 1360, it was undisputed that a personal use amount of fentanyl is just one milligram.

[00:21:17] Speaker 04:
And here you have four and a half pounds.

[00:21:19] Speaker 04:
It was also undisputed that, you know, that fentanyl is manufactured by cartels.

[00:21:24] Speaker 04:
That's 6 ER 1363.

[00:21:27] Speaker 04:
And even though, as defense counsel pointed out, there was no, you know, that this value witness only talked about the value of the drugs.

[00:21:36] Speaker 04:
the court the government would point the court to six excerpt of record 1364 65 there was a very detailed questioning of the agent about what a pound not even four and a half pounds but just a pound of fentanyl that the economics that happened with it

[00:21:54] Speaker 04:
where it imported, you know, and they talk about an importer gets it, then they break it up into ounce quantities, sell that to a dealer, then that dealer breaks it into grams and sells it to users.

[00:22:04] Speaker 04:
So there was that kind of evidence.

[00:22:06] Speaker 04:
And I believe as the court has pointed out, you know, when we stop and look at the basics here, it's just a matter of relevance.

[00:22:12] Speaker 04:
Is it more likely than not to make a fact true here?

[00:22:17] Speaker 04:
The district court exercised her broad discretion and found that the retail value was such a fact.

[00:22:23] Speaker 04:
Because this wasn't some odd piece of art that one person is buying and is going to hold onto forever.

[00:22:29] Speaker 04:
This is four and a half pounds of fentanyl.

[00:22:32] Speaker 04:
And you have evidence that that's astronomically higher than a personal use amount.

[00:22:36] Speaker 04:
So it's a reasonable inference that it will be distributed.

[00:22:40] Speaker 04:
And there was also testimony at six excerpt of record 1365 that the more the same parties transact with each other, the better price they get.

[00:22:48] Speaker 04:
So there is a value to stability and recurring relationships.

[00:22:52] Speaker 04:
All of that you can infer knowledge from.

[00:22:55] Speaker 04:
And as far as the 403, the district court exercised her discretion as well.

[00:22:59] Speaker 04:
And she pointed out, you know, there was never any dispute as to the wholesale value, which itself was at least six figures.

[00:23:06] Speaker 04:
So to add, you know, the relevance,

[00:23:09] Speaker 04:
It's not just that it's prejudicial.

[00:23:11] Speaker 04:
It has to be substantially prejudicial.

[00:23:14] Speaker 04:
And the court exercised discretion and found that that was not the case.

[00:23:18] Speaker 04:
And then just touching on the rule of completeness, Your Honor, we agree in the first instance that the rule doesn't apply.

[00:23:26] Speaker 04:
But as we also pointed out, citing both the advisory committee notes and precedent of this court, the rule of completeness is construed narrowly.

[00:23:34] Speaker 04:
The law is pretty clear that just because somebody says,

[00:23:38] Speaker 04:
entire paragraph of things if if one party only introduces one sentence the other party's not entitled to introduce the others just because they're there there has to stand your position to be that the sentence that they sought to introduce was on a separate topic entirely from the sentence that was mentioned correct and the question was have you had any work done and that

[00:23:59] Speaker 04:
I think under any reasonable construction that implies like voluntary work with a mechanic or somebody that it's consensual.

[00:24:07] Speaker 04:
The whole idea that you might have left your car with the valet who then undertook this incredible string of

[00:24:14] Speaker 04:
inferences that are you know to put drugs in it that's an entirely separate issue exactly you know my understanding the rule of completeness is is if the witness said that the light was red and somehow what we put in it was the light was green or you know that the defendant confessed when in fact the defendant denied culpability it has to be something that would leave a real distortion and here we don't see that so

[00:24:39] Speaker 04:
And unless the court has any questions on the other issue, I still have six minutes.

[00:24:47] Speaker 04:
I'm happy to yield the remainder of my time to defense counsel.

[00:24:52] Speaker 03:
I don't have any more questions.

[00:24:54] Speaker 02:
Thank you, counsel.

[00:25:01] Speaker 00:
I appreciate the courts giving me two minutes for rebuttal time under the circumstances.

[00:25:07] Speaker 00:
I would like to first very briefly address the preparatory threshold issue regarding the discovery produced and note that we will endeavor as best as possible if this court does enter an order to make sure that all relevant materials are before the court.

[00:25:29] Speaker 00:
So I want to make sure that

[00:25:30] Speaker 00:
notwithstanding the protective order that Mr. Rahe, Mr. Zip, and I can all have a meeting of the minds regarding how we can best make sure that that material is lodged with the court, making sure to maintain its secrecy under the protective order.

[00:25:48] Speaker 00:
Because Judge Graber has a well-deserved reputation for being a wordsmith, I opened up the rule book and checked rule 106.

[00:26:00] Speaker 00:
In pertinent part, it says, if a party introduces all or part of a statement, an adverse party may require the introduction at that time of any other part or any other statement that in fairness ought to be considered at the same time.

[00:26:13] Speaker 00:
So our position is that even though this isn't a formal proffer to the court, that the witness is testifying about the statement.

[00:26:22] Speaker 00:
In this case, it was Special Agent Day of HSI.

[00:26:26] Speaker 00:
His testifying was at least a constructive introduction of the statement.

[00:26:31] Speaker 00:
So that would be our position.

[00:26:32] Speaker 00:
That's true.

[00:26:32] Speaker 02:
Even if that's true, how does it clarify or correct a misimpression

[00:26:42] Speaker 00:
I think what it does is it gives added context, Your Honor, to that very limited portion of the statement that was made.

[00:26:50] Speaker 00:
That limited portion was that he had not had any work, meaning any maintenance work done on the engine.

[00:26:56] Speaker 00:
The added clarification is that

[00:27:00] Speaker 00:
He was parking his car, or at least he had reason to believe that he was parking his car under circumstances that could have led others to have access to the vehicle overnight.

[00:27:11] Speaker 02:
That doesn't actually change the initial statement of he hadn't had work done.

[00:27:15] Speaker 00:
It does not.

[00:27:17] Speaker 00:
specifically change it, Your Honor, because that was a statement that he was making truthfully.

[00:27:24] Speaker 00:
However, he was clarifying the implication that the agent was trying to draw from that, which is that he had not had any work done and therefore he must have been aware of the circumstances that led to the supposed engine tampering that

[00:27:42] Speaker 00:
Border Patrol Officer Hanlon testified regarding.

[00:27:45] Speaker 00:
I see that I'm over time.

[00:27:47] Speaker 00:
If there are no further questions, I'd be glad to submit.

[00:27:52] Speaker 02:
All right.

[00:27:52] Speaker 02:
Thank you, Council, for your arguments.

[00:27:54] Speaker 02:
The matter of the United States versus Alfred Velasquez is submitted, and we are adjourned for the morning.

[00:28:22] Speaker 03:
for this session stands adjourned.