[00:00:07] Speaker 00: Good morning, Your Honors. [00:00:08] Speaker 00: Katie Hurlbrink on behalf of Bhuta Singh. [00:00:12] Speaker 00: This appeal revolves around one key piece of evidence introduced at Mr. Singh's illegal entry trial, and that is page three from a document recovered from Mr. Singh at arrest. [00:00:24] Speaker 00: The briefing laid out five reasons why that document was inadmissible, but for the sake of time, I'd like to focus on two. [00:00:30] Speaker 00: It was not an adoptive admission. [00:00:32] Speaker 00: And if it were, it would have been introduced in violation of Miranda. [00:00:36] Speaker 00: And I'd actually like to start with the Miranda issue because I think it's the clearest, cleanest way to decide this case. [00:00:42] Speaker 00: And that's because Berkamer holds that a formal arrest is Miranda custody and triggers the requirement to give Miranda warnings. [00:00:51] Speaker 00: And we know here that Mr. Singh was under arrest. [00:00:55] Speaker 00: We know because the magistrate judge found as much. [00:00:57] Speaker 00: The Border Patrol agent, Agent Fulton, testified to that. [00:01:02] Speaker 00: And he specifically testified that the reason he wanted this document from Mr. Singh was to fill out the biographical information portion of a field processing form. [00:01:14] Speaker 00: And he said that form was a record of arrest. [00:01:17] Speaker 00: something that records the area where someone was arrested. [00:01:20] Speaker 00: Other people involved in the arrest. [00:01:22] Speaker 02: What technology... Does that mean that everyone who encounters Border Patrol under these circumstances are deemed arrested then? [00:01:31] Speaker 02: As I understand it, it's fairly routine to... [00:01:33] Speaker 02: detain individuals at the border and identify them and sometimes they're released, sometimes they're taken into custody. [00:01:42] Speaker 02: Is that the natural consequence of your argument that all of these encounters then are in effect arrests? [00:01:48] Speaker 00: No, Your Honor, it is not. [00:01:50] Speaker 00: Because the distinguishing feature of this case is that the border patrol agents in this case [00:01:57] Speaker 00: decided to exercise their statutory authority to actually formally arrest Mr. Singh. [00:02:04] Speaker 00: If they had not done that, if this was a pre-arrest case, they had not exercised their authority to do that, then we would have our ordinary field statements style, our ordinary Terry Stopp style analysis that this court has done in case [00:02:20] Speaker 03: But in this case, there were multiple people late at night. [00:02:22] Speaker 03: They were fleeing. [00:02:24] Speaker 03: So wouldn't it be reasonable in those situations to handcuff someone even during a Terry stop? [00:02:30] Speaker 00: If this was a pre-arrest case, Your Honor, I think those would be very strong arguments. [00:02:34] Speaker 00: But Berkamer holds that once the Border Patrol makes the decision to actually formally arrest somebody, [00:02:41] Speaker 00: they are in custody for purposes of Miranda. [00:02:44] Speaker 00: And so I think what we ordinarily think of when we read Berkamer is its pre-arrest holding, where Berkamer says... So lead us through the sequence of events that in your view tell us that this is an arrest. [00:02:59] Speaker 00: were your honor. [00:03:00] Speaker 00: So the the Border Patrol Agent Agent Baron found Mr Singh in the field. [00:03:07] Speaker 00: At that point, it tried to talk to Mr Singh. [00:03:10] Speaker 00: That was absolutely a Terry stop. [00:03:12] Speaker 00: I totally agree that that was a Terry stop. [00:03:15] Speaker 00: But the record reflects Agent Fulton testified that by the time he got to the van, the Border Patrol agents had decided to formally arrest him. [00:03:25] Speaker 00: They had made that decision to exercise their power. [00:03:28] Speaker 00: to formally arrest him, and that formal arrest is custody. [00:03:31] Speaker 00: We know that from Berkamer because in that second holding, Berkamer said that, you know, categorically, there is no question that the respondent in that case was in custody, at least as of the moment he was formally placed under arrest and instructed to get into the police car. [00:03:48] Speaker 00: That was a contested issue in Berkamer. [00:03:50] Speaker 00: It was contested whether a formal arrest in the misdemeanor context automatically triggered. [00:03:56] Speaker 01: And so what happens, keep going with the sequence of events, in terms of at some point he has to be Mirandized and is not in your view and then some evidence is introduced [00:04:08] Speaker 01: that constitutes a version of confession. [00:04:11] Speaker 01: So keep going in terms of the time sequence, in terms of what happened. [00:04:15] Speaker 00: Of course, Your Honor. [00:04:15] Speaker 00: So he's arrested, and we know after he was arrested that he was asked to give over this document, this page three. [00:04:28] Speaker 00: We know that because the Border Patrol agent said that that was why he was grabbing the document. [00:04:32] Speaker 01: Was he in the van at this point when that happens? [00:04:34] Speaker 00: He was in the van. [00:04:35] Speaker 01: He's handcuffed in the van? [00:04:36] Speaker 00: I believe he was handcuffed, led over to the van. [00:04:39] Speaker 00: The handcuffs were removed. [00:04:40] Speaker 01: At some point, they come off. [00:04:41] Speaker 00: That's exactly right. [00:04:42] Speaker 01: But he's in the van. [00:04:43] Speaker 01: Is the door closed? [00:04:44] Speaker 01: Do we know one way or the other? [00:04:45] Speaker 00: As I understand the record, he's in the van with other detainees, and the Border Patrol agent is blocking the door. [00:04:52] Speaker 00: And that's when he's filling out his formal arrest form. [00:04:55] Speaker 01: And is the question as to whether or not he's under arrest is, was he free to leave? [00:05:00] Speaker 01: Is that the question? [00:05:01] Speaker 00: Not exactly, Your Honor. [00:05:04] Speaker 00: Even in a Terry stop, a person is not free to leave. [00:05:07] Speaker 00: The real question is whether he is under formal arrest, and if he is under formal arrest, the analysis ends. [00:05:13] Speaker 00: In pre-arrest cases, totally different. [00:05:15] Speaker 01: So what's the definition of a Terry stop, then? [00:05:19] Speaker 00: I'm sorry, Your Honor? [00:05:19] Speaker 01: So what's the definition of a Terry stop? [00:05:21] Speaker 01: You're contending this is not a Terry stop, so tell me the definition of a Terry stop. [00:05:25] Speaker 00: Correct. [00:05:26] Speaker 00: So, a Terry stop is a pre-arrest stop where the person is free to leave after brief questioning. [00:05:36] Speaker 00: And the person would feel that they were free to leave after brief questioning. [00:05:39] Speaker 00: But upon formal arrest, the analysis entirely changes. [00:05:42] Speaker 00: The facts and circumstances don't matter. [00:05:44] Speaker 00: after a formal arrest, and we know that from Berkamer because Berkamer has a pre-arrest section where they're evaluating the facts and circumstances and a post-arrest section where they're not. [00:05:55] Speaker 01: So if the page three is admitted and it should have been Mirandized but was not, do we then treat that as if it were like an oral confession without having been Mirandized? [00:06:10] Speaker 01: And if there's a Miranda violation, I think you have to show that what's admitted in violation of Miranda is harmless beyond a reasonable doubt. [00:06:18] Speaker 01: Is that right? [00:06:18] Speaker 00: That's exactly correct, Your Honor. [00:06:20] Speaker 00: And it's clear under the Miranda case law that anything that communicates information is going to be a statement, a suppressible type statement. [00:06:28] Speaker 00: So even, for example, pointing or gesturing. [00:06:31] Speaker 00: And so in this case, this purported adoptive admission would fit the bill. [00:06:35] Speaker 02: So can you, before you run out of time, address the harmless error question? [00:06:39] Speaker 02: The magistrate found that even without the passport page, the visa application alone was sufficient. [00:06:46] Speaker 02: How do you respond to that? [00:06:47] Speaker 00: So the magistrate judge did find that the visa application alone was sufficient, but she was able to rely on the visa application only by rejecting our argument that the visa applicant and Mr. Singh might not be the same person. [00:07:02] Speaker 00: So that was one of our bases for reasonable doubt. [00:07:04] Speaker 00: The government has not proved beyond a reasonable doubt that the visa applicant, the man being described in this document, is in fact the same man sitting trial here today. [00:07:17] Speaker 00: And the prosecutor had a response to that argument. [00:07:20] Speaker 00: She said, well, she urged the magistrate judge, [00:07:24] Speaker 00: She said, I look at the passport and the visa document as co-supporting each other. [00:07:29] Speaker 00: She said, when you look at the visa identifiers, so the name, the date of birth, nationality, city of birth, those all correspond to page three of the passport that was found in the defendant's pocket. [00:07:41] Speaker 00: This is ER 123. [00:07:42] Speaker 00: And then she says, that is extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India. [00:07:55] Speaker 00: And then we see the magistrate judge picking up on that because she says that when she's addressing the same identity argument, she says, I find that the information in the document [00:08:06] Speaker 02: I'm looking at the visa application. [00:08:08] Speaker 02: There's a very, very clear photo. [00:08:11] Speaker 02: Is there an issue that his appearance had so dramatically changed that he no longer looks like the individual depicted in the photo? [00:08:19] Speaker 02: Well, the record doesn't tell us, Your Honor. [00:08:21] Speaker 00: The magistrate judge did say that the information in the document as well as the photo combined were sufficient to make her believe beyond a reasonable doubt that this was the same person. [00:08:32] Speaker 00: But the record is silent on whether the photo alone would have caused her to come to the same conclusion. [00:08:37] Speaker 00: And this court must start with a presumption of prejudice. [00:08:41] Speaker 00: The government has the burden. [00:08:42] Speaker 00: So in the case of silence, the tie goes to the defendant. [00:08:46] Speaker 01: I recognize I risk taking you over time, but I'm sure that the presiding judge will give you some rebuttal time if I take you too long. [00:08:56] Speaker 01: I read all this in the magistrate judge's order. [00:09:01] Speaker 01: I think I'm right that the district judge doesn't talk about Exhibits 6 and 7. [00:09:07] Speaker 01: Is that right? [00:09:09] Speaker 00: Your Honor, to be frank, I don't remember. [00:09:11] Speaker 01: I don't think the district judge relied on the exhibits that we're talking about. [00:09:21] Speaker 01: So what do I do with that? [00:09:22] Speaker 00: So the case law says that this court's review is essentially a new review. [00:09:31] Speaker 00: Your honors are not deferentially reviewing what the district court did, but are almost, I wouldn't say ignoring the district court's ruling, because to the extent it's persuasive, your honors can rely on it. [00:09:40] Speaker 00: But the district court's rulings do not affect the way that your honors are decided. [00:09:46] Speaker 01: So even if the district court didn't rely on it, we can look back to see what the magistrate judge relied on. [00:09:51] Speaker 02: I think that's correct. [00:09:53] Speaker 02: Okay. [00:09:54] Speaker 02: All right. [00:09:54] Speaker 02: Thank you. [00:09:55] Speaker 02: I'll put a couple of minutes back on for a bottle. [00:09:57] Speaker 02: Thank you [00:10:07] Speaker 04: Zach Howe for the United States. [00:10:09] Speaker 04: I'd like to start where my friend on the other side ended and then circle back to the Miranda issue. [00:10:14] Speaker 04: I think there's an important concession in the reply brief that draws the harmless error issue into focus here. [00:10:21] Speaker 04: In the reply brief, my friend on the other side says, and I'll just quote, page 29, the defense is happy to concede that the visa applicant filled out the visa application. [00:10:30] Speaker 04: It is never argued otherwise. [00:10:32] Speaker 04: Now, of course, the visa applicant is Buddha Singh. [00:10:34] Speaker 01: Well, no, that depends on who the visa applicant is. [00:10:37] Speaker 01: That's the question. [00:10:38] Speaker 04: Correct. [00:10:39] Speaker 04: And the visa application says that the applicant is Buddha Singh. [00:10:42] Speaker 04: So I think what's being argued here is an identity argument. [00:10:46] Speaker 04: It's sort of a belated argument that there wasn't enough evidence that the individual, the defendant in court, was Buddha Singh. [00:10:53] Speaker 04: But we have a concession that Buddha Singh did fill out the application. [00:10:57] Speaker 04: But for purposes of identity, there should be no question about it because the defendant has admitted that he is in fact Buddha Singh. [00:11:04] Speaker 04: You see this at page 187 of the record where he's arraigned on the information and he's asked, is Buddha Singh your true and correct name? [00:11:11] Speaker 04: And he says yes. [00:11:12] Speaker 01: You know, you've probably done cases involving Sikhs enough to know that pretty much everybody is named Singh. [00:11:22] Speaker 01: It's going to be like John Smith. [00:11:25] Speaker 01: So I'm Buddha Singh, but there are about a hundred other Buddha Singhs within a hundred miles of here. [00:11:31] Speaker 04: Your Honor, I think at the point when you have the defendant saying, my name is Buddha Singh, and you have no identity argument advanced before the magistrate judge, no identity argument advanced before the district court, then it's safe to say that this person is Buddha Singh. [00:11:45] Speaker 02: I'm not sure I understand your argument that there was no identity argument. [00:11:48] Speaker 02: The whole point is insufficiency of the evidence, right? [00:11:52] Speaker 02: They're fighting the admission of page three, which the government appears to rely heavily on to link to the visa application to establish [00:12:00] Speaker 02: alienate. [00:12:01] Speaker 02: So when you say what the government didn't carry its burden of proof, to me, that's an identity argument. [00:12:08] Speaker 04: So, Your Honor, I think that, look, even without that concession, even without any of that, I think you can easily say that even if the passport wrongly came in and shouldn't have, the visa application itself would have provided enough information to link that application to the defendant. [00:12:26] Speaker 04: And that is what the magistrate judge found at page 127 [00:12:30] Speaker 04: of the record. [00:12:31] Speaker 04: There was never any reference to the passport by the magistrate. [00:12:35] Speaker 04: The government absolutely argued that the passport linked the defendant to the application because we thought the passport rightly came in. [00:12:43] Speaker 04: But the magistrate judge said the information in the application and the photograph on the application showed that this was in fact information provided by Singh, the defendant. [00:12:55] Speaker 01: Am I right in terms of what our standard to review here is? [00:12:59] Speaker 01: That is to say, if there was a Miranda violation, you need to show that it was harmless beyond a reasonable doubt? [00:13:07] Speaker 04: Absolutely. [00:13:08] Speaker 01: So it's not like, is there sufficient evidence to support the conviction? [00:13:12] Speaker 01: That's not the argument. [00:13:13] Speaker 01: The argument, you have to show that the admission of the document was harmless beyond a reasonable doubt. [00:13:18] Speaker 01: That's a pretty heavy burden. [00:13:20] Speaker 04: That's correct. [00:13:21] Speaker 04: I think for the other two issues, the evidentiary issues, it would be harmless by our preponderance. [00:13:25] Speaker 04: For the Miranda issue, I agree it's harmless beyond a reasonable doubt. [00:13:28] Speaker 04: We think that's met here because of the application. [00:13:30] Speaker 04: But let me turn to the Miranda issue, because there is no Miranda problem here. [00:13:35] Speaker 04: My friend is relying on a theory that Singh was formally arrested. [00:13:40] Speaker 04: And so it's sort of an in-run around the need to even conduct the normal custodial interrogation analysis. [00:13:47] Speaker 04: But Singh was not formally arrested here. [00:13:49] Speaker 04: There are two pieces of evidence that my friend points to for the notion that Singh was formally arrested. [00:13:55] Speaker 04: One are findings by the magistrate judge. [00:13:58] Speaker 04: Now we dispute that the magistrate judge found a formal arrest, but ultimately it's irrelevant because this court conducts de novo review of whether someone is in custody. [00:14:06] Speaker 04: The second piece of evidence is testimony from Agent Fulton, I believe at page 120 of the record, that Singh was under arrest when he was in the truck bed. [00:14:17] Speaker 04: That was his subjective belief. [00:14:19] Speaker 01: Well, if the arresting officer or the officer in question, who might or might not be the arresting officer, says, I arrested him, [00:14:28] Speaker 01: How do you get out from under that? [00:14:30] Speaker 04: So he expressly says he did not arrest Singh. [00:14:32] Speaker 04: That's at page 118 of the record. [00:14:34] Speaker 04: Then at page 120, he's basically just saying I assumed he was under arrest, but he's not the one who did it. [00:14:40] Speaker 04: And yet, he didn't say he saw Agent Barron, the first agent who interacted with Singh, placing under arrest or anything like that. [00:14:47] Speaker 04: So all he's doing is expressing his subjective belief that Singh might have been under arrest at that time. [00:14:52] Speaker 03: Do we give any weight to the subjective belief? [00:14:54] Speaker 03: I understand we do an objective analysis, but do we give any weight to the subjective beliefs of the officer? [00:15:01] Speaker 04: You give zero weight to it. [00:15:02] Speaker 04: This court said that in the Kim case. [00:15:03] Speaker 04: The Supreme Court said that in Stansberry. [00:15:05] Speaker 04: The Berkamer case supports that proposition. [00:15:07] Speaker 04: So that goes out the window, and then you ask, what do you do? [00:15:10] Speaker 01: This one looks a little bit to me like, looks like a duck. [00:15:13] Speaker 01: It walks like a duck. [00:15:14] Speaker 01: And then the duck says, yeah, under arrest. [00:15:18] Speaker 01: He's not free to leave. [00:15:20] Speaker 01: I understand that that by itself is not determinative. [00:15:24] Speaker 01: He's placed in confinement in basically a portable prison, which is what this van is. [00:15:30] Speaker 01: There's somebody at the door. [00:15:32] Speaker 01: An officer says, I assume he's under arrest. [00:15:35] Speaker 01: I mean, that's pretty strong evidence that he's under arrest, it seems to me. [00:15:39] Speaker 04: So Your Honor, the talking like the duck is what's missing here. [00:15:42] Speaker 04: And the reason I say that is because if you look at both agents, start with Agent Fulton, the last one who interacted with Singh, he says expressly, page 118, I didn't place him under arrest. [00:15:52] Speaker 04: So then you have to go back to Agent Barron and see, did he place him under arrest? [00:15:56] Speaker 04: And he has a very thorough analysis of what he did during the interactions with Singh at page 74 through 84 of the record. [00:16:02] Speaker 04: And at no point does he say, I told the defendant he was under arrest. [00:16:07] Speaker 01: So you don't have... Well, do you have to tell someone they're under arrest in order for them to be under arrest? [00:16:11] Speaker 01: That doesn't happen. [00:16:12] Speaker 01: You don't need that. [00:16:13] Speaker 04: So, Your Honor, the Supreme Court and this Court, to my knowledge, have never actually defined what a formal arrest is, because frankly, a formal arrest is a narrower category of custody. [00:16:23] Speaker 01: You can be— Would you answer my question? [00:16:25] Speaker 01: Sure. [00:16:25] Speaker 01: I think you told me or wanted me to believe that in order for him to be under arrest, he has to be told he's under arrest. [00:16:31] Speaker 01: I don't think that's necessary, is it? [00:16:33] Speaker 04: I think there are possibilities of having a formal arrest without that, but it would be something to the extent of, look, you were taken to the station and put in a jail cell or booked into jail or something like that, something you just don't have here. [00:16:44] Speaker 04: The things you do have. [00:16:46] Speaker 01: But further, I mean, you don't have to be taken to the station in order to be under arrest. [00:16:51] Speaker 01: Again, you're giving me examples that are more than is needed to be under arrest. [00:16:56] Speaker 02: So I think you can be in- What does the record show in terms of how long the encounter was from the time that the agents- [00:17:03] Speaker 02: saw the group hiding in the bushes and the time that Mr. Singh produced his passport. [00:17:09] Speaker 04: I don't know that it puts an exact minute amount on it, but I believe it was fairly brief. [00:17:14] Speaker 04: Essentially what happened is agents found Singh hiding in some brush. [00:17:18] Speaker 02: I know the sequence. [00:17:19] Speaker 02: I wanted to know something more specific than that. [00:17:22] Speaker 02: This record reflect the approximate time of the encounter because the length of encounter I think makes a difference. [00:17:29] Speaker 04: If it is in there, then I'm not aware of them placing a specific minute value on it. [00:17:33] Speaker 04: I think it would have been a matter of minutes since he's just walked out to a clearing. [00:17:37] Speaker 01: On what basis do you think? [00:17:40] Speaker 01: What you think is not the important question. [00:17:43] Speaker 04: Fair enough, Your Honor. [00:17:44] Speaker 04: It's based on the sequence of events. [00:17:45] Speaker 04: He's just taken out to a clearing. [00:17:47] Speaker 04: He's briefly handcuffed so that a pat down can be performed. [00:17:50] Speaker 04: Handcuffs are taken off. [00:17:51] Speaker 04: He's placed in the truck bed, and then an agent asks for [00:17:55] Speaker 04: identification from him and the two others who are sitting in the truck bed. [00:17:58] Speaker 04: So there's not a lot that goes on here. [00:18:00] Speaker 04: And once we're into that analysis, is that custodial interrogation, then again, the handcuffs and placing someone in the back of the truck bed under different circumstances absolutely would result in custody. [00:18:13] Speaker 04: You can't do that in a normal traffic stop, but when you're dealing with a risk of flight or a risk of danger, [00:18:19] Speaker 01: Then this court has said... The risk of flight sounds, if you're trying to avoid the risk of flight, that begins to sound like an arrest. [00:18:26] Speaker 01: They say, I don't want to let him go. [00:18:28] Speaker 04: Your Honor, in Medina Via and in Cervantes Flores, this court has said that the use of handcuffs or even placing someone in a police vehicle is not custody when you are dealing with the risk of flight, as demonstrated here by the fact that [00:18:45] Speaker 04: Singh had entered the country on a raft at night. [00:18:48] Speaker 04: He had hidden in brush. [00:18:50] Speaker 04: He had led agents on pursuit where they had to follow footsteps. [00:18:53] Speaker 04: They had to track multiple groups that broke off in different directions. [00:18:56] Speaker 01: I understand that they were worried about risk of flight. [00:18:58] Speaker 01: I totally agree with you on that point. [00:19:00] Speaker 01: The question is, [00:19:01] Speaker 01: Confining someone so as to avoid the risk of flight or limit it begins to sound like an arrest. [00:19:09] Speaker 01: It may not by itself be an arrest, but that begins to sound like one of the factors that tells me it might be an arrest. [00:19:16] Speaker 04: I agree with that, and I think under other circumstances it absolutely would be, if not an arrest, then at least custody. [00:19:24] Speaker 01: And do you contest the narrative that he's in this sort of van? [00:19:27] Speaker 01: It's kind of like a portable jail, as I understand it. [00:19:30] Speaker 01: It's a way of confining. [00:19:31] Speaker 01: It's not like on the back of a pickup truck. [00:19:34] Speaker 01: It's confined with a door, and that there's an agent standing in the doorway. [00:19:38] Speaker 04: That is my understanding. [00:19:39] Speaker 04: The doors open, the agent is standing in front of the door. [00:19:42] Speaker 04: Now, I do contest this notion that, you know, this phrase sell on wheels has been thrown around a lot. [00:19:47] Speaker 04: That's solely defense counsel's phrase. [00:19:49] Speaker 04: That's a page 97 and 98 of the record. [00:19:52] Speaker 04: The officer is confused when that phrase gets used. [00:19:55] Speaker 04: He says, I guess you can call it that if you want. [00:19:57] Speaker 04: It's just like a door that opens. [00:20:00] Speaker 04: That's his exact phrasing. [00:20:02] Speaker 01: Let me understand it then. [00:20:04] Speaker 01: I'll take the word jail out of it or cell out of it. [00:20:07] Speaker 01: But is it, as it were, an enclosed room on a truck? [00:20:11] Speaker 01: Does it say it's got four walls and a door? [00:20:14] Speaker 04: So as I understand it, this would be a normal truck with a camper shell on it. [00:20:19] Speaker 04: There was no picture or anything like that introduced so we can see exactly what it was. [00:20:24] Speaker 04: But my understanding is it was simply a truck with a normal camper shell that had a door. [00:20:29] Speaker 04: that opened and that door was open. [00:20:31] Speaker 04: You had three individuals inside and you had the agent standing in front of it. [00:20:34] Speaker 01: So it's an enclosed room with a door leading to the outside, the officer standing in the door blocking anyone from getting out? [00:20:43] Speaker 04: That's correct. [00:20:44] Speaker 04: I think that's right. [00:20:45] Speaker 02: I know you're a little bit over time, but let me ask you about what happened to the passport and the government's discovery obligation. [00:20:51] Speaker 02: Were you the trial counsel? [00:20:53] Speaker 04: I was not. [00:20:54] Speaker 02: I find it very surprising at the government's [00:20:59] Speaker 02: very cavalier attitude towards its discovery obligation in this case to say, well, it's not in our custody or the prosecution team. [00:21:06] Speaker 02: He's detained, right? [00:21:09] Speaker 02: He's essentially in prison. [00:21:12] Speaker 02: And whether he has access to it or not, I don't know. [00:21:14] Speaker 02: I'm just assuming he has access to it. [00:21:16] Speaker 02: And this is a piece of evidence that the government intended to really rely on that trial. [00:21:23] Speaker 02: I don't know what the standard [00:21:24] Speaker 02: practice or protocol is in your office, but I assume that if you're going to rely on a piece of evidence that you have the ability to very quickly secure that evidence in the hands of your case agent. [00:21:36] Speaker 04: Fair enough, Your Honor, so I'm happy to address that. [00:21:39] Speaker 04: I think there's an important date that should come into play here. [00:21:44] Speaker 04: The government relayed to Singh that the passport had been transferred to ICE after he went into ICE custody. [00:21:51] Speaker 04: That was pursuant to Border Patrol's policies. [00:21:54] Speaker 04: And as I understand it, the prosecutor had been told by Border Patrol that he should have access to it at ICE. [00:22:01] Speaker 04: It's true that the government didn't verify with ICE that Singh would have access. [00:22:07] Speaker 04: And I think there's an argument that, hey, maybe the government should have verified. [00:22:09] Speaker 02: What agency was your case agent from? [00:22:11] Speaker 04: with Border Patrol. [00:22:15] Speaker 04: But the reason it went to ICE is because Singh got bail and then he went into ICE custody and so pursuant to their policies, they transferred it to ICE. [00:22:22] Speaker 04: Now look, I think you can argue that maybe the government should have verified with ICE that Singh had access and not just verified with Border Patrol. [00:22:30] Speaker 04: But the important date that I think comes into... I don't know how Singh would have had access to it. [00:22:33] Speaker 02: He's in custody. [00:22:37] Speaker 02: I would expect that it would be just a matter of your case agent walking over to ISIS office and transferring custody of the passport into his hands. [00:22:48] Speaker 04: So I think they're different facilities. [00:22:50] Speaker 02: This whole issue would not have happened at all if the government had taken that obligation on. [00:22:55] Speaker 04: Fair enough, Your Honor. [00:22:55] Speaker 04: So two points here. [00:22:57] Speaker 04: One is that the very next day, so you had this email discussion on September 12th of 2019. [00:23:01] Speaker 04: On September 13th of 2019, there was a hearing held in the case. [00:23:07] Speaker 04: At that hearing, Singh raised a number of dismissal and discovery issues that were all denied, but at the end of that hearing, you can see this at page 215 of the record, Singh says, I have all the discovery in the case. [00:23:18] Speaker 04: So I think you can make the point that [00:23:20] Speaker 04: Yeah, the government should have verified that Singh had access with ICE, but when the very next day you have Singh saying, I have all the discovery in the case, not saying court, I would really like to view this passport, order the government to give me the passport, order them to produce it, order them to facilitate a viewing, nothing like that. [00:23:38] Speaker 04: When he says, I have all the discovery in the case, and the government thinks Singh already has access to the passport, at that point, it's hard for the government to think there is a live request to view the passport. [00:23:48] Speaker 01: But there had been an earlier request that had not been complied with. [00:23:52] Speaker 01: There's not a later request that's not complied with. [00:23:55] Speaker 01: And when somebody says, I have all the discovery, that often means things other than or restricted. [00:24:01] Speaker 01: So I'm not sure that that gets you totally where you need to get. [00:24:04] Speaker 04: Your Honor, there was a long discussion of outstanding discovery issues in the case, covering Henthorne material, covering a number of other things, and not covering this passport. [00:24:14] Speaker 04: There was even a discussion on page 214 of the record where the government said it intended to admit the copy, and Singh said that he might have evidentiary objections to that, but he never asked to view the passport. [00:24:25] Speaker 04: So when you have in court a defendant confirming, I have all the discovery, I do think it's hard for the government to think, now I'm supposed to do more discovery. [00:24:34] Speaker 03: What's the protocol if someone's in ICE custody, but that person is also being prosecuted? [00:24:40] Speaker 03: Does the government usually get passport itself to use at trial or is it ICE provides, you know, quick code access to it? [00:24:49] Speaker 04: So I'll be honest. [00:24:50] Speaker 04: I'm not sure. [00:24:51] Speaker 03: I do think DOJ could just ask ICE to give the passport to it that this person is being prosecuted and we need it for trial. [00:24:59] Speaker 04: I think that's probably the case. [00:25:01] Speaker 04: I'll say it's unusual to have defendants get bail in this situation so that then they're transferred to ICE custody, or at least that's my understanding. [00:25:09] Speaker 04: I don't have intimate familiarity with how this works, but I think it's a little bit unusual. [00:25:13] Speaker 04: But I think you're probably right. [00:25:15] Speaker 04: could probably say to ICE, hey, we want this passport. [00:25:18] Speaker 04: Now, the last point I'll make is I do think even if you were to find that there was a live request for a passport and that there was, you know, some technical violation of Rule 16, by the defendant's own characterization, this was at most negligence. [00:25:34] Speaker 04: You see that at page one? [00:25:35] Speaker 01: But, you know, let me think about this in terms of I have all the discovery I need. [00:25:39] Speaker 01: I have all the discovery I need and since I've seen things, [00:25:42] Speaker 01: But that doesn't relieve the government of the obligation to introduce the evidence. [00:25:46] Speaker 01: I mean, it's your obligation to introduce the passport and you didn't do it. [00:25:49] Speaker 01: It's not his obligation to turn it in. [00:25:53] Speaker 04: If there's been a request for Rule 16 information, then the government has to provide it. [00:25:57] Speaker 01: My argument is that when... No, this is a different question in terms of what's introduced at trial. [00:26:01] Speaker 01: It's your obligation to introduce the passport. [00:26:03] Speaker 01: It's part of your burden of proof. [00:26:04] Speaker 04: Your Honor, under the best evidence rule, under Rule 1003, the government can introduce the duplicate if there's no question about the authenticity of the original and there's no unfairness from admitting the [00:26:16] Speaker 04: copy and as the case but there was some question correct I mean that that's what that's why he says I want I want to see it and you better introduce it and you couldn't do it there was no question about the authenticity of the original item for two reasons one is that the government never claimed this was an original authentic passport and the magistrate in fact admitted it on the assumption that it was not going in as an authentic passport we've taken you well over time but I appreciate your argument thank you your honor [00:26:52] Speaker 00: Your honors, I would like to start my rebuttal today by circling back. [00:26:56] Speaker 00: Actually, can you hold on a second? [00:26:57] Speaker 00: Let's put two minutes on the clock. [00:27:00] Speaker 00: by circling back to the Miranda issue. [00:27:04] Speaker 00: In particular, it is true that ordinarily this court reviews de novo whether custody has occurred, but it reviews underlying facts for clear error. [00:27:13] Speaker 00: And whether Mr. Singh was under formal arrest is a fact, just like whether Your Honors have issued an opinion, whether any other officer of the state has executed a particular task. [00:27:26] Speaker 00: It is an objective fact whether the person is under arrest. [00:27:29] Speaker 00: And it just isn't true that Agent Fulton here testified that he was assuming that Agent Barron had or he didn't have personal knowledge of what Agent Barron did. [00:27:42] Speaker 00: Rather, he simply says, [00:27:44] Speaker 00: you know, defense counsel asked, but was he under arrest when he was in the van? [00:27:49] Speaker 00: And he simply said, yes. [00:27:51] Speaker 00: And he testified, I was filling out arrest paperwork at that time. [00:27:54] Speaker 00: And so the government could have cross-examined that and said, oh, but how do you know? [00:27:58] Speaker 00: Do you have personal knowledge? [00:27:59] Speaker 03: So what would be the key difference? [00:28:01] Speaker 03: Because I assume these things happen a lot. [00:28:03] Speaker 03: Multiple people near the border at nighttime, they're running. [00:28:09] Speaker 03: And they're probably always handcuffed, probably. [00:28:12] Speaker 03: And most of the times we consider that the border terry stops. [00:28:17] Speaker 03: So what's the difference here? [00:28:18] Speaker 03: Is it the testimony by the officer that he believed that they were arrested? [00:28:21] Speaker 03: What would distinguish this case from a situation that probably occurs quite frequently? [00:28:27] Speaker 00: It is that the magistrate judge found he was under arrest. [00:28:31] Speaker 00: The agent testified he was under arrest. [00:28:33] Speaker 00: And we know that objectively because the agent was filling out arrest paperwork. [00:28:38] Speaker 00: And I think, you know, I do think there's some slippage here in terms of subjective and objective. [00:28:43] Speaker 00: I would encourage your honors to look at the discussion in Berkamer because Berkamer discusses both. [00:28:47] Speaker 00: Berkamer says, you know, if the officer is just thinking to himself, oh yes, I'm going to eventually arrest this person. [00:28:54] Speaker 00: This person will never be free to leave. [00:28:56] Speaker 00: That is the kind of subjective impression that doesn't enter into the analysis. [00:29:00] Speaker 00: But it distinguishes when the agent actually placed the motorist under arrest. [00:29:08] Speaker 00: And it says, categorically, there is no question that the respondent was in custody at least at the moment he was formally placed under arrest and instructed to get in the police car. [00:29:19] Speaker 00: Thank you. [00:29:19] Speaker 00: Thank you very much, counsel. [00:29:21] Speaker 00: The matter is submitted.