[00:00:01] Speaker 03: We finished that case. [00:00:04] Speaker 00: It's a little bit like deja vu. [00:00:06] Speaker 00: Okay, well, welcome back. [00:00:07] Speaker 00: This is a new case, United States v. Azam, but our counsel are the same, so you may proceed when you're ready. [00:00:14] Speaker 01: Thank you, Your Honor. [00:00:15] Speaker 01: Kara Hartzler may please the court. [00:00:17] Speaker 01: Kara Hartzler, Federal Defenders, on behalf of Mr. Azam. [00:00:20] Speaker 01: I'd like to shift and take a slight break from Miranda before we get back into it and talk about our first issue, which was whether the charging document in this case was adequate. [00:00:31] Speaker 01: And in this case, all the court needs to look at to resolve this are the government's admissions in their brief. [00:00:36] Speaker 01: First of all, the government admits that the intent to enter without getting caught is an element of illegal entry. [00:00:43] Speaker 01: And the government then also admits that this element didn't appear anywhere in the charging document. [00:00:48] Speaker 01: And under this court's decision in quasi QAZI, basically, that's all the court needs to know. [00:00:54] Speaker 01: This requires remand and dismissal of the complaint. [00:00:57] Speaker 02: And I take it if you're correct, the government could then [00:01:01] Speaker 02: Could institute new charges against your client. [00:01:05] Speaker 01: I don't want to concede that because the statute of five years have run. [00:01:08] Speaker 02: I know you don't want to concede it, but it seems to me that that's the natural outcome of that argument. [00:01:16] Speaker 01: I think that is probably likely. [00:01:20] Speaker 01: So that alone resolves this case. [00:01:23] Speaker 01: If the court agrees with us, it doesn't even need to reach the Miranda issue here. [00:01:26] Speaker 01: However, I'll go ahead and hit that Miranda issue. [00:01:29] Speaker 01: As the court has been struggling with all morning, where do you draw the line? [00:01:34] Speaker 01: I think here, at a minimum, there was the same facts [00:01:39] Speaker 01: as we've had in prior cases today, where a person was seen basically either right next to the border or right after they had crossed. [00:01:46] Speaker 01: It was in the middle of the day. [00:01:47] Speaker 01: The person and the group was then transported to a different location. [00:01:52] Speaker 01: And very importantly for this case, and a fact that the government never really acknowledges in their brief or grapples with, [00:01:59] Speaker 01: The fact is that they confiscated everyone's cell phones and shoelaces. [00:02:04] Speaker 01: That's not something that you do if a person is not in custody. [00:02:07] Speaker 01: You take a person's shoelaces because you don't want to have, you don't want them to have shoelaces when they're in jail and there might be a suicide issue. [00:02:14] Speaker 02: So, at amendment- You take them because you don't want them to be able to run and it's hard to run if your shoes fall off. [00:02:21] Speaker 01: Perhaps. [00:02:24] Speaker 01: I'm not sure there's anything in the record either way. [00:02:26] Speaker 01: I guess my bigger picture point, Your Honor, is that this is a situation where property was confiscated. [00:02:32] Speaker 01: And it's hard to imagine a situation where there would be a Terry stop and a person would be put in a car, moved to another location, have their property confiscated. [00:02:43] Speaker 01: And then that would not be custody. [00:02:45] Speaker 01: So at a minimum, that resolves this case. [00:02:48] Speaker 02: I want to then move to the... Before you leave that point, we've been asking in the last two cases whether there was... [00:02:57] Speaker 01: with the last case, whether there was some good reason to move the people from point A to point B. You're not contesting here that there was a good reason to move the people from point A to point B. The officer here did testify that he was moved away from the border because of a safety risk. [00:03:16] Speaker 01: We agree. [00:03:16] Speaker 01: We acknowledge that. [00:03:18] Speaker 01: But let's say. [00:03:18] Speaker 02: You still think that they were in custody. [00:03:22] Speaker 02: But you're not claiming they were in custody because the officer didn't have a good reason to move them. [00:03:27] Speaker 01: I agree that there was a flight or a safety risk that was presented. [00:03:31] Speaker 01: OK. [00:03:31] Speaker 01: I just want to make sure that I've got the right. [00:03:33] Speaker 01: But I think at a minimum here, once they got to the second location, they could have just given the Miranda warnings then before they started reading off a form, questioning them, and taking their property. [00:03:44] Speaker 02: Each of these cases, what makes them frustrating is they could have given the Miranda warnings whether they were required or not at the time of apprehension. [00:03:52] Speaker 02: It's not whether they could have given the warnings. [00:03:54] Speaker 02: It's whether they were in custody. [00:03:56] Speaker 02: And I understand your argument that they were in custody, but you're not relying on the movement to put them in custody. [00:04:01] Speaker 02: You're relying on the other factors you talked about. [00:04:05] Speaker 01: I think the other factors are enough to resolve this case. [00:04:09] Speaker 01: So I want to talk about harmlessness of the Miranda issue in case this becomes necessary. [00:04:15] Speaker 01: I don't think it is necessary, but essentially what I want to point the court to for harmlessness [00:04:21] Speaker 01: is the magistrate judge's analysis on pages 118 to 120 of the expedited, I'm sorry, of the excerpts of record. [00:04:29] Speaker 01: And there's a couple really critical things that the judge says that shows that the judge actually relied on the statements in this case. [00:04:38] Speaker 01: What the judge does is the judge says, okay, well, I'm looking at all the circumstantial evidence of how they entered. [00:04:45] Speaker 01: I don't think there's any Ninth Circuit case that says that that alone is enough to show alienage. [00:04:50] Speaker 01: Because of that, I'm going to turn to the statement, yes, Punjabi. [00:04:54] Speaker 02: Okay, so let's assume for a moment that the judge shouldn't have turned to the statement. [00:04:59] Speaker 02: Okay. [00:04:59] Speaker 02: But we review the record on sufficiency of the evidence de novo. [00:05:03] Speaker 02: So the question I have is, absent the statement, [00:05:09] Speaker 02: Is there sufficient evidence to support the conviction? [00:05:14] Speaker 01: Find alienage? [00:05:14] Speaker 01: No. [00:05:15] Speaker 02: This court has- Okay, so your position, I want to ask you, I think that would be your position, and I want to ask you, I want to address the implications of that position. [00:05:24] Speaker 02: It's the same question Judge Parker and I asked in the last case. [00:05:29] Speaker 02: You have circumstances of somebody coming across. [00:05:34] Speaker 02: Let's assume those circumstances would establish the other elements of the offense, that somebody came across at a non-port of entry. [00:05:45] Speaker 02: And the person refuses to answer any questions. [00:05:50] Speaker 02: The government may not charge him for violating this statute. [00:05:54] Speaker 02: on that evidence? [00:05:58] Speaker 01: No, they could absolutely charge them. [00:05:59] Speaker 01: They just need other evidence of alienage. [00:06:03] Speaker 00: They could get a birth certificate. [00:06:04] Speaker 00: Why isn't that circumstantial evidence of alienage? [00:06:07] Speaker 00: So the circumstances of his apprehension and the absence of any documents giving him the right to be there, why isn't that sufficient evidence? [00:06:16] Speaker 01: Well, first of all, this court has never held that that's enough. [00:06:20] Speaker 01: And in fact, this court has held that mode of entry, it may not even be enough to corroborate the person's admissions. [00:06:26] Speaker 02: Well, but actually the court has said it depends on the facts. [00:06:29] Speaker 02: The court said mode of entry may be enough to corroborate. [00:06:32] Speaker 02: And in this case, we have more than mode of entry. [00:06:35] Speaker 02: We have not just motive entry, but we have covered in, you know, wearing a life jacket, covered in water, obviously had been in water, and the only water in the area is the canal, and the canal goes across the border, and he's apprehended with four Spanish-speaking people. [00:06:53] Speaker 02: We don't know whether, we know they're not citizens, but the judge didn't put that in the record. [00:06:58] Speaker 02: And then we have the check of the database. [00:07:00] Speaker 02: You know, not overwhelming evidence, but some evidence. [00:07:04] Speaker 02: So let's assume your client had never said a word. [00:07:08] Speaker 02: Would there be sufficient evidence to convict him in this case? [00:07:13] Speaker 02: No. [00:07:13] Speaker 02: So what you're really saying is that in order to get a conviction in the real world of somebody from Asia where you can't call up the next day and say, is this guy a citizen? [00:07:28] Speaker 02: It's OK for the alien. [00:07:31] Speaker 02: The alien can avoid conviction on this crime simply by keeping his mouth shut. [00:07:35] Speaker 01: No, not at all. [00:07:37] Speaker 01: Because what happened here is that the government just didn't do its work. [00:07:42] Speaker 01: It didn't look, for instance, in other cases, there have been visa applications. [00:07:46] Speaker 01: They've gotten a birth certificate. [00:07:47] Speaker 01: They've used other documents. [00:07:49] Speaker 01: And they could have had the witnesses testify. [00:07:51] Speaker 02: So could they have held your client while they looked for all these things? [00:07:54] Speaker 02: Yes. [00:07:55] Speaker 02: Yes. [00:07:55] Speaker 02: Yeah, they could have arrested him. [00:07:56] Speaker 02: Then there was probable cause to arrest him. [00:07:58] Speaker 01: There was probable cause, but there wasn't sufficient evidence beyond a reasonable doubt of alienation. [00:08:04] Speaker 02: So I want to play this out, because I'm worried in this case about the effect on border enforcement. [00:08:09] Speaker 02: They stop him. [00:08:10] Speaker 02: They have probable cause to arrest him. [00:08:13] Speaker 02: And put aside the Miranda issue for a moment. [00:08:15] Speaker 02: Let's just assume he's a smart guy, or has been advised, and he says not saying a word. [00:08:22] Speaker 02: If they can't find evidence of his alienage within the period of time in which he's entitled to a speedy trial, which is, what, 90 days? [00:08:31] Speaker 01: No, 70. [00:08:33] Speaker 01: Huh? [00:08:33] Speaker 01: 70. [00:08:34] Speaker 02: OK. [00:08:35] Speaker 02: I'm sorry. [00:08:35] Speaker 01: No, it's fine. [00:08:36] Speaker 02: A relatively brief period. [00:08:38] Speaker 02: You call the Pakistani embassy and they say, because he's a terrorist and we sent him to blow up the country, we're not helping you. [00:08:46] Speaker 02: I'm just not sure why I can't infer. [00:08:49] Speaker 02: I mean, a reasonable person looking at all these facts, even absent the statement, would say, oh, surely this guy's an alien. [00:08:58] Speaker 01: US citizens cross between ports of entry all the time. [00:09:00] Speaker 01: It happens all the time for a variety of reasons. [00:09:02] Speaker 00: Doesn't this hypothetical actually just, I mean I know we're moving away from the Miranda issue, but I think that this kind of relates in the sense that had they just arrested him, which they had probable cause to arrest him, then they could spend as much time as they needed. [00:09:17] Speaker 00: to determine what the evidence was to be able to convict him beyond a reasonable doubt. [00:09:23] Speaker 00: Exactly. [00:09:25] Speaker 00: And if I understand your argument, you think all of these other things that they had just didn't rise to the standard that the government has of the sufficient evidence beyond a reasonable doubt. [00:09:36] Speaker 01: Exactly. [00:09:37] Speaker 01: And in fact, there are many, many cases, 1325s, 1326s, where the government brings a lot of other evidence. [00:09:44] Speaker 01: And the fact is that in this case, the prosecutor just didn't bring anything. [00:09:47] Speaker 02: So let me ask you the next question, because we've asked you to assume your client said nothing. [00:09:52] Speaker 02: And let me ask you to assume for purposes of this question that there's not a Miranda problem. [00:09:57] Speaker 02: And so the additional fact that comes into the record is Punjabi. [00:10:03] Speaker 02: Is that enough to sustain the conviction? [00:10:05] Speaker 01: We are arguing no. [00:10:07] Speaker 01: And the reason is because Punjabi is not necessarily—it can be a region, but it can also be a language, and language is not necessarily— Correct. [00:10:19] Speaker 02: But it's at least another fact. [00:10:22] Speaker 02: It can be a region. [00:10:26] Speaker 02: It's one of the two dictionary definitions. [00:10:28] Speaker 02: One is region, the other is language. [00:10:30] Speaker 04: But you could also, you could be a Punjabi and be an American citizen. [00:10:33] Speaker 04: Exactly. [00:10:33] Speaker 02: So you don't think putting the two, even putting that in, putting aside the Miranda problem would allow a reasonable finder of fact to find that this person was not an American citizen. [00:10:45] Speaker 01: I think it's very problematic to rely on language and conflate it with alienation. [00:10:50] Speaker 02: Well, you said on language, but I'm saying I can look at that and say, gee, Punjabi to me in this context, and says I'm from the Punjab. [00:11:00] Speaker 02: I'm a Punjabi. [00:11:02] Speaker 01: It may be, there may be some sufficiency issues. [00:11:07] Speaker 02: I'm interested because if you don't win your Miranda other arguments, then we have to confront this. [00:11:13] Speaker 02: That is correct. [00:11:14] Speaker 02: And so in your position is that it's not enough. [00:11:17] Speaker 01: And here we are saying it was not enough. [00:11:19] Speaker ?: OK. [00:11:20] Speaker 01: Correct. [00:11:20] Speaker 01: I'll save the remainder of my time. [00:11:22] Speaker 01: The court has no other questions. [00:11:31] Speaker 05: Morning again, Zach Howe for the United States. [00:11:34] Speaker 05: I'm happy to start with the sufficiency argument that we've just been discussing. [00:11:38] Speaker 04: I'll start with the complaint argument. [00:11:41] Speaker 05: Sure. [00:11:42] Speaker 05: So I think it's important here to break out the mens rea and the actus reus. [00:11:46] Speaker 05: The mens rea is specific intent. [00:11:48] Speaker 05: The actus reus is entry, which obviously includes entry free from official restraint. [00:11:53] Speaker 05: So I think the question here is, did the complaint have one and did it have the other? [00:11:57] Speaker 05: Now, starting with specific intent, Resendez-Pontz from the Supreme Court says that alleging attempt includes alleging its component parts. [00:12:06] Speaker 05: So, the complaint here alleged attempt, therefore, it included the component part of specific intent. [00:12:13] Speaker 05: Now, my friend on the other side says that, uh, Rezendez-Ponce only addressed the actus reus and not the mens rea part of attempt. [00:12:22] Speaker 05: I don't think there's any way to read the reasoning of Rezendez-Ponce as doing so when it specifically says you don't need to allege the component parts of attempt. [00:12:32] Speaker 05: And then you have cases from this court like DeVore and Elk Booth, which has specifically applied Rezendez-Ponce to the mens rea allegations in [00:12:43] Speaker 05: complaints and held that they were sufficient even though they lacked the specific intent language. [00:12:49] Speaker 05: So I think you can apply Rosendez-Pontz in this court's cases to address the mens rea piece. [00:12:54] Speaker 05: Now, on the actus reus, that is the entry free from official restraint. [00:12:59] Speaker 05: Here, the complaint alleged entry, it didn't define that term to include freedom from official restraint. [00:13:06] Speaker 05: But of course, as this court said in the unpublished Devales Lopez case, courts don't need, or excuse me, complaints don't need to define the term entry. [00:13:16] Speaker 05: And that is all consistent with Supreme Court case law saying you don't need to define legal terms of art in indictments or information. [00:13:25] Speaker 05: The best case I can point you to on this issue is Hamling. [00:13:28] Speaker 05: There, the court said it was sufficient to allege that the defendant mailed obscene materials. [00:13:35] Speaker 05: And obscenity is a legal term of art that is much more confusing than entry or attempt. [00:13:40] Speaker 05: It's a three-part definition, and I will bungle it very badly if I try to recite it for you, but it involves considering the prurient interest and community standards and whether information has scientific or literary value. [00:13:52] Speaker 05: There's much more to it than that. [00:13:54] Speaker 05: But suffice it to say, the court said you don't need to allege all of that in the complaint because you don't have to define legal terms of art. [00:14:01] Speaker 02: That's all you have here. [00:14:02] Speaker 02: Is there any requirement when we look at the complaint [00:14:04] Speaker 02: I mean, the facts of this case are, I mean, there is no contention of official restraint and the case was tried. [00:14:15] Speaker 02: on a different theory, and everybody was on notice of this stuff. [00:14:20] Speaker 02: Do you contend that if there was a deviation in the indictment, it's not material? [00:14:26] Speaker 05: So, Your Honor, this court, I believe, has case law that may well have been superseded by later Supreme Court case law, but we haven't made that argument here. [00:14:36] Speaker 05: But you have case law. [00:14:37] Speaker 02: I'm not making that up, because one of the things that occurred to me is that, and I don't think your friend argues to the contrary, [00:14:42] Speaker 02: She's not arguing that her client was prejudiced by any deficiency in the indictment. [00:14:47] Speaker 02: And I think the court has started to suggest that we ought to look at stuff that way. [00:14:52] Speaker 05: And I think that may well be right. [00:14:54] Speaker 05: We haven't advanced the argument here. [00:14:55] Speaker 05: So for purposes of this appeal— You're not making it. [00:14:57] Speaker 05: I'm not going to make it for you. [00:14:58] Speaker 00: Can you return to the sufficiency of the evidence issue that I think you were going to start with? [00:15:02] Speaker 00: And my question specifically is, how can a rational trier of fact find that his alienage [00:15:10] Speaker 00: find his alienage beyond a reasonable doubt with the lack of a—I mean, I guess it's just Punjabi. [00:15:20] Speaker 00: That's what we're looking at. [00:15:21] Speaker 00: So if we agree with the government that there was no Miranda problem and that statement or that word comes in, explain to me what your best case is and why you think that thin evidence is enough. [00:15:34] Speaker 05: Certainly. [00:15:35] Speaker 05: So I'll caveat and say, you know, you're obviously looking at the evidence in the light most favorable to the government, drawing all reasonable inferences in our favor. [00:15:43] Speaker 05: Now, the reason you can find Punjabi sufficient is because you look at it in conjunction with the mode of entry, the database searches, the... What's your best case? [00:15:52] Speaker 05: I'll be honest, I don't think there's a case perfectly on point here. [00:15:56] Speaker 05: The best case that the parties were able to come up with in response to a request for briefing by the magistrate judge was the Garcia Villegas case. [00:16:05] Speaker 05: Now there you actually, it was a Corpus Delicti case, and there you actually had an admission of alienage, and the court says that mode of entry alone is enough to corroborate it. [00:16:15] Speaker 02: The reason that's- Yeah, but they were dealing with something different because [00:16:19] Speaker 02: Everybody agrees that the confession in that case, if admitted, is sufficient to establish the fact of the crime. [00:16:28] Speaker 02: And so what we're trying to do is, or sufficient to establish the element of alienage, I'm sorry. [00:16:33] Speaker 02: So we're trying to figure out whether there's sufficient corroboration of the confession in order to let us use it. [00:16:39] Speaker 02: They're not making that argument here. [00:16:42] Speaker 02: They're not making a corpus de lecti argument. [00:16:46] Speaker 02: If admitted, it's just that fact and add it together with all the other facts in the case isn't sufficient. [00:16:54] Speaker 02: And I'm trying to, so that's really the question we're supposed to ask. [00:16:57] Speaker 00: Wouldn't we be lowering the bar significantly if we were to find that in this case, that alone would give a try or a fact enough evidence to find beyond a reasonable doubt? [00:17:13] Speaker 00: I mean, that's pretty [00:17:15] Speaker 00: It's pretty different, I think. [00:17:17] Speaker 00: And I appreciate your statement that there really isn't another case on point. [00:17:21] Speaker 00: I can't find one either. [00:17:23] Speaker 05: Sure. [00:17:23] Speaker 05: So let me try to address all of that. [00:17:25] Speaker 05: And I do agree. [00:17:26] Speaker 05: It's not on point. [00:17:27] Speaker 05: There's a slight tangent. [00:17:28] Speaker 05: I do think sufficiency of the evidence, or corpus derelicti might be a subset of sufficiency of the evidence, which is why this court has an intra-circuit split on the proper standard of review. [00:17:35] Speaker 02: No. [00:17:35] Speaker 02: See, I'm assuming that the rest of the facts here are sufficient to corroborate. [00:17:40] Speaker 02: the sufficient to corroborate his statement, Punjabi. [00:17:45] Speaker 02: I just don't know whether that statement, even if corroborated, is enough to establish the alienage element to this offense. [00:17:56] Speaker 05: Understood. [00:17:57] Speaker 05: And what I will say is, I think this will often be the answer when you're talking about sufficiency of the evidence. [00:18:02] Speaker 05: We're often going to have to come up here and say there's not a case directly on point, because sufficiency of the evidence is, by nature, so fact bound. [00:18:09] Speaker 05: What I can say is that when you take the answer Punjabi, which I agree refers to a language or ethnicity and not a region, I think Punjab would be the region. [00:18:19] Speaker 05: So when you have an answer to an ethnicity or a language, I do think that is enough when you take the rest of the facts of this case, and I'm happy to walk through what those are. [00:18:27] Speaker 05: I think you have the database searches, which I'm not placing too much weight on, and neither did the magistrate judge, but it is something that the defendant had no petitions or any other indication that he had applied for or received status within the United States. [00:18:41] Speaker 05: Beyond just the answer, Punjabi, the testimony was that the [00:18:47] Speaker 05: defendant had trouble understanding Spanish or English, whereas the four people he was traveling with did understand Spanish, and obviously when... There are people in this country who don't understand Spanish or English. [00:19:00] Speaker 05: I totally agree. [00:19:01] Speaker 05: I do think it's some evidence, but the reason I think it's more than just a, you know, lack of understanding of Spanish or English is that he is traveling with individuals that [00:19:11] Speaker 05: Inferrably, he does not understand. [00:19:13] Speaker 05: And obviously, it is somewhat unusual to find a United States citizen swimming through a culvert right near the border, traveling with individuals that he doesn't understand. [00:19:23] Speaker 05: The reasonable inference for that is that those are not citizens. [00:19:26] Speaker 05: They are non-citizens who came into the country over the border. [00:19:30] Speaker 02: So is it your position that let's assume he didn't respond? [00:19:36] Speaker 02: Do you think you could sustain a conviction without that response? [00:19:41] Speaker 05: Yes, and that is our harmless error argument for Miranda. [00:19:44] Speaker 05: I admit that's a higher hill for us to climb because we don't have the benefit of the... Yeah, I mean, I'm not worried about harm... I'm not worried it's Miranda violation for the moment. [00:19:52] Speaker 02: Sure. [00:19:53] Speaker 02: We may or may not find one. [00:19:54] Speaker 02: That's not my question. [00:19:55] Speaker 02: My question is, assuming that there... [00:19:58] Speaker 02: We're not looking at harmless error. [00:20:00] Speaker 02: We're just trying to figure out whether or not the addition of the Punjabi or subtraction of it in this case makes any difference. [00:20:09] Speaker 02: So is it your position that you could sustain a conviction for violation of this statute simply on all the other evidence in the case? [00:20:18] Speaker 02: I'm not going to try to characterize it, whether it's motive entry argument or who he's with or whatever. [00:20:24] Speaker 02: Could you sustain a conviction based solely on that? [00:20:27] Speaker 05: On these facts, yes. [00:20:29] Speaker 05: Rewind. [00:20:29] Speaker 05: So I think the testimony about Azam not understanding English or Spanish directives and having the agent having to use gestures as compared to the four individuals who are with him who did understand [00:20:45] Speaker 05: Get you 90% of the way to the statement Punjabi anyway, because it indicates again and I'm not just saying that it's the so you can infer from that. [00:20:54] Speaker 05: He doesn't speak Spanish or English can infer from it. [00:20:57] Speaker 05: He doesn't speak Spanish or English. [00:20:58] Speaker 05: But again, I'm not just relying on that. [00:21:00] Speaker 05: It's the fact that [00:21:01] Speaker 05: He doesn't speak Spanish or English, whereas the individuals he is traveling with do speak that language. [00:21:06] Speaker 05: And you can infer that, therefore, he is traveling with individuals swimming through a canal right next to the border with individuals that he can't even communicate with. [00:21:16] Speaker 02: That's not something that, using your reasoning and common sense, a... Well, I'm trying to... And so let me back... I'm trying to subtract pieces from this case and figure out whether additions are important or not. [00:21:26] Speaker 02: Let's assume that he's perfectly quiet when he gets there. [00:21:30] Speaker 02: He just doesn't respond to any question. [00:21:32] Speaker 02: He doesn't indicate that I don't understand anything or not. [00:21:35] Speaker 02: So all you've got are the other circumstances of the case. [00:21:39] Speaker 02: I must tell you that common sense would tell me nobody gets in a canal and [00:21:46] Speaker 02: floats under the fence and does all the things that happen here unless he's trying to enter a country other than this country of citizenship. [00:21:55] Speaker 02: But common sense is not what we apply to these cases. [00:21:58] Speaker 02: We're trying to figure out what the legal standard requires. [00:22:01] Speaker 00: So- And by the way, the officers did not know that he was in a canal or floating under a fence. [00:22:09] Speaker 00: On land, he was wet. [00:22:10] Speaker 00: I suppose you could infer that. [00:22:12] Speaker 02: Hiding in a culvert, I mean. [00:22:13] Speaker 02: But I'm, Judge, Judge is right. [00:22:16] Speaker 02: But I'm assuming that it's a reasonable inference that he was in the canal, because it's the only other water in the area. [00:22:22] Speaker 02: And he's gone on a life preserver. [00:22:24] Speaker 02: So let's assume, whatever the facts are, you take all of them into light, most favorable to the government. [00:22:30] Speaker 02: But you're not relying on his failure to acknowledge that he speaks English or Spanish. [00:22:35] Speaker 02: Is that enough? [00:22:37] Speaker 05: Yes, and I do agree with all that they didn't see him. [00:22:40] Speaker 05: It was an inference based on him being wet. [00:22:41] Speaker 05: So the reason I say it's enough. [00:22:42] Speaker 00: So if it's enough, then what happens in this case? [00:22:44] Speaker 00: Would the government retry him without that statement if it believed it could prove its case? [00:22:52] Speaker 05: The charging decision would be above my pay grade here, but I'm going to hazard a guess that we probably do not retry him. [00:22:58] Speaker 02: The reason I ask the question is if we sustain your friend's argument, which is that the proof in this case was insufficient, then you can't retry him. [00:23:09] Speaker 02: That would be subjected to jeopardy. [00:23:12] Speaker 02: If we find an error, an evidentiary error, we could send it back for retrial. [00:23:16] Speaker 05: Yes, I agree completely. [00:23:17] Speaker 02: So what concerns me about [00:23:22] Speaker 02: minimalizing your position, eventually you get to it, is we have two crimes possible here. [00:23:26] Speaker 02: One is just, I don't care what country you're from, you can't hop over the fence. [00:23:31] Speaker 02: You've got to come through a port of entry unless there's a reasonable excuse. [00:23:35] Speaker 02: And the second crime is, it's a worst crime if you do that and you're an alien. [00:23:40] Speaker 02: So would the government really be prevented from prosecuting these? [00:23:45] Speaker 02: Which is sort of one of your arguments in the brief. [00:23:48] Speaker 02: You could always prosecute the guy for the [00:23:50] Speaker 02: illegal entry crime, you just couldn't prosecute him for being an alien illegally entering, right? [00:23:58] Speaker 02: I agree with all of that. [00:23:59] Speaker 02: The facts here are certainly sufficient to know, but they don't even argue that the facts here aren't sufficient to establish the other elements of the offense, that he entered the country through other than a port of entry. [00:24:13] Speaker 02: We can surely infer that from all the facts here. [00:24:16] Speaker 02: So the question is really, why shouldn't we require more of the government if they want us to charge the more serious crime? [00:24:24] Speaker 05: So I think I agree with everything you're saying. [00:24:26] Speaker 05: Now, the only part I maybe disagree with is the very last part. [00:24:29] Speaker 05: I think this is a simple question of, on this unique constellation of facts, is the evidence sufficient? [00:24:36] Speaker 05: And I'm not saying that other evidence. [00:24:39] Speaker 02: I'm responding to one of the arguments in your brief, which is that [00:24:42] Speaker 02: Otherwise, how will we prosecute people? [00:24:45] Speaker 02: You know, Pakistan may not return our phone calls. [00:24:49] Speaker 02: And the answer is, I think you prosecute them for the entry crime and not the alien entry crime. [00:24:56] Speaker 05: So I can't speak to that. [00:24:57] Speaker 05: I am aware of the 1459 crime. [00:25:00] Speaker 05: I'm not aware of a single time where we've charged it in our district. [00:25:03] Speaker 05: Maybe it does happen. [00:25:04] Speaker 05: So I can't speak to any of that. [00:25:07] Speaker 05: The only thing I can speak to is, again, whether the evidence was sufficient in this case. [00:25:11] Speaker 05: And I'm happy to speak more about that or about the Miranda issues. [00:25:15] Speaker 05: I believe I have about a minute left. [00:25:19] Speaker 05: What I can say is that I think this would be a different case if you had different circumstances of entry, if you had different responses to, again, not the questions, but just the gestures or the good afternoon or the other things that don't involve the defendant's statement. [00:25:34] Speaker 05: If you'd have differences in the database searches, if you'd had differences in the people that Azam was with and whether he could understand them or not. [00:25:44] Speaker 05: be very clear that I think there would be many circumstances where on somewhat different evidence the evidence wouldn't be sufficient. [00:25:50] Speaker 05: I'm simply relying here on that additional evidence that you had beyond just the statement of Punjabi or beyond just even the communications with the agent writ large. [00:26:02] Speaker 02: I have to ask you this question because it fascinates me. [00:26:06] Speaker 02: Your agent says, the agent says, [00:26:09] Speaker 02: I don't speak any of these other languages. [00:26:12] Speaker 02: There's nothing in the record indicating why he said to him Punjabi, is there? [00:26:19] Speaker 02: I don't recall if he... He says, the agent says Punjabi and the other guy says Punjabi. [00:26:24] Speaker 02: Correct. [00:26:26] Speaker 02: Was he a Sikh? [00:26:28] Speaker 02: I don't know the answer to that. [00:26:30] Speaker 02: There's no evidence in this record suggesting why the agent thought of saying the word Punjabi is there. [00:26:35] Speaker 05: You know, I believe, and I might get the record citation wrong here, it's in the 40s somewhere, but I believe the agent may have misunderstood and thought that Punjabi referred to the region. [00:26:46] Speaker 02: Well, no, I'm not worried about it. [00:26:49] Speaker 02: He may have reasonably inferred that it referred to the region. [00:26:51] Speaker 02: That's one of the definitions. [00:26:53] Speaker 02: in Merriam-Webster. [00:26:54] Speaker 02: I'm just, I'm asking a question that, really, does the record tell me why the agent thought to say to Mr. Azam, Hunjabi? [00:27:05] Speaker 05: No. [00:27:05] Speaker 02: As opposed to, as opposed to, you know, Malaysian, you know, whatever. [00:27:13] Speaker 02: No, I'm just inferring that. [00:27:14] Speaker 02: There isn't, there isn't, I'm just, I was hoping you could help, tell me I was wrong and the record told me why, but you can't. [00:27:22] Speaker 05: No, I'd be hazarding the guess that aside from English or Spanish, that would be one of the next most common languages. [00:27:28] Speaker 05: But again, that's not in the record. [00:27:29] Speaker 05: That's sort of me speculating. [00:27:30] Speaker 05: So there's nothing on that particular question. [00:27:33] Speaker 04: Thank you. [00:27:33] Speaker 05: Happy to answer other questions or else I'll submit. [00:27:35] Speaker 04: Thank you. [00:27:36] Speaker 05: Thank you. [00:27:43] Speaker 01: I'd like to try to answer your question, Judge Hurwitz, about why couldn't they just charge the $14.59? [00:27:48] Speaker 01: And they can. [00:27:48] Speaker 01: In fact, in the Western District of Texas, that is a regularly charged crime that the DOJ can and does get convictions for. [00:27:55] Speaker 01: So I think for that reason, there is absolutely a good reason not to take the government up on its offer to lower the evidentiary burden that it has. [00:28:06] Speaker 01: And I know that the court is aware of this. [00:28:08] Speaker 01: This is not about whether we can deport people. [00:28:10] Speaker 01: This is about whether we take their liberty for a criminal offense. [00:28:13] Speaker 01: And we shouldn't be relaxing the burden just because the government believes that it should be relaxed. [00:28:19] Speaker 01: Just to go back for my last point to the argument about the sufficiency of the complaint, I think the government's argument, it made a point at one point that the term enter [00:28:30] Speaker 01: doesn't need any further clarification. [00:28:32] Speaker 01: And this court's decision in Vasquez Hernandez, which is on page seven of our reply brief, says the exact opposite. [00:28:39] Speaker 01: It says, for purposes of the crime of illegal entry, and in that case it was a re-entry, but the same elements, the doctrine of official restraint gives the word enter a distinct legal meaning that evades a general reading. [00:28:51] Speaker 01: And because of that, it is improbable that an average juror could correctly understand and apply the term entry in this context. [00:28:58] Speaker 01: That alone shows that there needed to be further clarification in the complaint. [00:29:03] Speaker 01: All the government had to do was add three words. [00:29:05] Speaker 01: It just needed to say, attempted to enter without being apprehended. [00:29:10] Speaker 01: They didn't do that. [00:29:11] Speaker 01: We put them on notice. [00:29:12] Speaker 01: They chose not to. [00:29:13] Speaker 01: That's all this court needs to know to resolve that issue. [00:29:16] Speaker 04: What about Resendiz Ponce? [00:29:20] Speaker 01: Resendez-Ponce, the issue of official restraint was never raised anywhere in the briefing, anywhere in the discussion. [00:29:26] Speaker 01: So while Resendez-Ponce basically did say it established the level of mens rea, i.e. [00:29:32] Speaker 01: specific intent. [00:29:33] Speaker 04: It said the word attempt sufficiently encompasses the specific intent in mens rea of attempted illegal entry. [00:29:40] Speaker 01: But it never said what that specific intent applies to. [00:29:43] Speaker 01: And the argument about does it apply to entering without getting caught was never at issue there. [00:29:50] Speaker 01: And so it wasn't resolved. [00:29:52] Speaker 01: And this court's case law clearly holds that it is an element. [00:29:55] Speaker 01: And because it's an element and because it's charged, as the government admits, nowhere, that resolves. [00:30:01] Speaker 02: So I take it, it would be no dispute if this were not an attempt case. [00:30:06] Speaker 02: Correct. [00:30:06] Speaker 02: Because that's what our case law says. [00:30:08] Speaker 02: Correct. [00:30:09] Speaker 02: And why doesn't the attempt, why doesn't under the Supreme Court's jurisprudence, the attempt allegation solve the problem? [00:30:17] Speaker 02: Because it would be, for instance, the same as- It might be a silly rule, but isn't that what the Supreme Court's telling us? [00:30:23] Speaker 01: Let's take the example of burglary. [00:30:25] Speaker 01: Let's say that you charged someone with attempted burglary. [00:30:29] Speaker 01: Now, the elements of that would be a specific intent to enter in order to commit larceny or any felony. [00:30:35] Speaker 01: But let's say that the charging document only said attempted to enter and had nothing as to commit larceny or any felony. [00:30:43] Speaker 01: That would not be a sufficient complaint. [00:30:45] Speaker 01: And that's exactly what we have here. [00:30:46] Speaker 02: If it said attempted burglary, would that be okay? [00:30:49] Speaker 01: no because the the complaint has to define the elements of burglary even if it says attempted even if it says attempted you still have to say what does that yes attempt says specific intent but what does that specific intent apply to and here the element that it's supposed to apply to entering without [00:31:06] Speaker 01: the intent to go at large and not be caught. [00:31:10] Speaker 01: That was nowhere. [00:31:11] Speaker 02: What does that do to the Supreme Court's jurisprudence? [00:31:14] Speaker 02: Even though the court says alleging attempt covers some sins, what you're saying is it really doesn't. [00:31:22] Speaker 01: No, I'm saying that there's plenty of cases where courts have said that questions that lurk in the record that were never decided are not decided and the official restraint question and whether specific intent must apply to an intent to enter without being caught. [00:31:37] Speaker 01: that was never decided or even discussed or raised in Resendez Ponce. [00:31:42] Speaker 01: And I'm out of time. [00:31:43] Speaker 01: Thank you very much. [00:31:44] Speaker 03: Thank you, Your Honor. [00:31:45] Speaker 03: Thank you both for spending so much of your valuable time with us. [00:31:51] Speaker 01: Thank you, Your Honor. [00:31:52] Speaker 01: We appreciate the spirited questions.