[00:00:02] Speaker 04:
You may proceed, counsel.

[00:00:04] Speaker 02:
Good morning, your honors.

[00:00:06] Speaker 02:
Michael Crowley, may it please the court, on behalf of Anthony Castillo.

[00:00:12] Speaker 02:
Well, first, I want to reserve three minutes for rebuttal.

[00:00:16] Speaker 02:
But also, I made a lame attempt of trying to file a 28-J letter, which did get filed yesterday.

[00:00:23] Speaker 02:
I started this on Monday.

[00:00:25] Speaker 02:
And if the court, I inquired with your clerk,

[00:00:28] Speaker 02:
I brought extra copies as one of your clerks said would be a good idea and I can provide that to the court if you like.

[00:00:36] Speaker 02:
It's a state case that I think is really germane to this situation.

[00:00:43] Speaker 04:
If you'd like I can provide that.

[00:01:04] Speaker 02:
And the reason the case is germane, even though it's a state case, is that it goes directly to this issue of the stop that ended up coming into evidence in the trial.

[00:01:20] Speaker 02:
I have to say, whenever I have these suppression-type cases, what I try to do is put myself in the position of, would I be treated the same if, in fact, I was pulled over this way?

[00:01:33] Speaker 02:
And what happened was they get pulled over and are immediately ordered out of the car.

[00:01:39] Speaker 02:
They are immediately then sat on the curb, obviously had no ability to freely leave at that point, and immediately are interrogated and provided with questions.

[00:01:54] Speaker 02:
This, of course, leads to further ongoing

[00:01:59] Speaker 02:
interrogation and a search ambiguous about whether there was any consent to the car search.

[00:02:07] Speaker 04:
I watched the videotape and I didn't see any objection to the, I mean I was

[00:02:15] Speaker 04:
It was an odd tape, because they seemed to be very compliant with the police.

[00:02:24] Speaker 04:
This is the one with the suitcase and the trunk, and they opened it with the key.

[00:02:32] Speaker 04:
I watched it, and I just didn't see any objection at all to this search.

[00:02:38] Speaker 02:
Which, of course, is the problem, is the issue, that they get pulled over for tinted windshields, which could be ascertained immediately.

[00:02:47] Speaker 02:
That investigation is now over.

[00:02:50] Speaker 02:
And then we continue on going to where they're, yes, they are absolutely compliant all the way through.

[00:02:57] Speaker 02:
In fact, what I picked up the second, actually third or fourth time that I've watched the tape was,

[00:03:03] Speaker 02:
It sure seemed like the officers precipitated the alarm going off in the car so that they could get the keys from my client and then go into the trunk and then go into a suitcase in the trunk with the key that was locked from there.

[00:03:24] Speaker 02:
So it was...

[00:03:26] Speaker 02:
particularly egregious in that regard.

[00:03:29] Speaker 02:
And then taking that evidence and then allowing it to come into trial when basically the evidence consists of the co-defendant, former girlfriend who feels that she was slighted, is the almost totality of what the

[00:03:52] Speaker 02:
what could be found to be appropriate evidence for a passenger in the backseat of the car in order to make their case.

[00:04:02] Speaker 02:
And of course, it does make their case.

[00:04:04] Speaker 02:
And that is really...

[00:04:07] Speaker 02:
grappled for 30 years with 404B.

[00:04:11] Speaker 02:
And it's so interesting that, for example, with knowledge, we do not require similarity specifically.

[00:04:20] Speaker 02:
But yet, when it is so similar, it can't help but cause the problem.

[00:04:26] Speaker 02:
The reason we keep character evidence at bay is because it's so strong.

[00:04:32] Speaker 02:
It's like I often say when I'm talking about it, it's like when you're, you know, with your mother, if you had a prior, you were dead in the water.

[00:04:45] Speaker 01:
But I mean, counsel, I think almost certainly as an experienced practitioner, you recognize that the problem here is the rule talks about is the

[00:04:56] Speaker 01:
Does the prejudicial value substantially outweigh the probative value?

[00:05:02] Speaker 01:
And we have the discretion of the trial judge making that determination.

[00:05:07] Speaker 01:
I mean, in my prior experience as a practitioner, that's a pretty high mountain to climb on appeal.

[00:05:15] Speaker 02:
It is a high mountain, and that's why I point out so

[00:05:22] Speaker 02:
as forcefully as I can, is the lack of other evidence that was before the jury.

[00:05:28] Speaker 02:
OK.

[00:05:28] Speaker 03:
Wait a minute.

[00:05:30] Speaker 03:
Early on, there was a question, I think, about whether Julianna.

[00:05:35] Speaker 02:
Miss Quavis.

[00:05:36] Speaker 03:
Miss Quavis, thank you, was going to show up.

[00:05:39] Speaker 03:
They had trouble finding her.

[00:05:40] Speaker 03:
She hadn't appeared.

[00:05:41] Speaker 03:
And so one wondered why the prosecutor was going to this length.

[00:05:45] Speaker 03:
But of course, she did show up at trial.

[00:05:47] Speaker 03:
And her testimony seems to me to have been quite devastating for your client.

[00:05:51] Speaker 02:
I would say that's fair.

[00:05:52] Speaker 03:
Right.

[00:05:53] Speaker 03:
Okay.

[00:05:53] Speaker 03:
So I fully appreciate your wife believed.

[00:05:56] Speaker 02:
I'm sorry, if believed.

[00:05:58] Speaker 03:
That's what the jury's there for.

[00:06:00] Speaker 03:
And so if we go back to the riverside, but of course, the government didn't know that at the time, right.

[00:06:07] Speaker 03:
So they're trying to get the riverside evidence in because it's also

[00:06:09] Speaker 03:
pretty darn devastating for the reasons that you've mentioned.

[00:06:13] Speaker 03:
So you went very to the top of the decision tree, and I think the trial court held three hearings about whether that was going to be admissible.

[00:06:21] Speaker 03:
What's your strongest argument, sir, that the Riverside evidence was incorrectly admitted?

[00:06:30] Speaker 02:
So my strongest part is that it is such strong evidence.

[00:06:34] Speaker 02:
character evidence when it should have been suppressed.

[00:06:48] Speaker 02:
if that ruling is made correctly, then we don't have the argument about whether it comes in as 404B at all.

[00:06:56] Speaker 02:
And so that's as forceful as I can say it, because it really tipped the balance if I concede that the evidence if believed from the co-defendant who eventually was dismissed from the case, in part because of her testimony,

[00:07:17] Speaker 02:
If, in fact, that is the case, there's just nothing else as being a backseat passenger in the car to be able to know other evidence.

[00:07:28] Speaker 03:
Well, yes, but when you say there's nothing else but, and the but is the co-defendant testifying in a way that I think is truly devastating, then it seems to me, you know, now with 2020 hindsight, we know the government had both at trial.

[00:07:40] Speaker 02:
Yes.

[00:07:40] Speaker 03:
And so given that she was there and she testified the way that she did, if your strongest argument is that the Riverside evidence was unfairly prejudicial, the probative value unfairly prejudicial, even given that Ms.

[00:07:54] Speaker 03:
Cuevas did testify?

[00:07:59] Speaker 02:
Yes, of course.

[00:08:00] Speaker 03:
Because she testified that he was a drug dealer and he spent most of his time dealing drugs, right?

[00:08:05] Speaker 02:
If you believe her testimony, yes.

[00:08:07] Speaker 02:
And that goes to some of the other issues of the domestic violence, innocently or not, coming into evidence that makes it even worse for my client, Mr. Castillo.

[00:08:24] Speaker 02:
And so you add all those up.

[00:08:27] Speaker 02:
we end up in a trial that has a series of errors that if done cleanly,

[00:08:36] Speaker 02:
Maybe it still goes the same way, but there's a lot of errors here.

[00:08:41] Speaker 02:
You know, we have, even in the motion in Limanese, we have, well, not in the motion in Limanese, but we're not given the information about a theft by one of the officers that testifies in the suppression, kind of suppression here.

[00:08:59] Speaker 01:
That was the theft of the quarters?

[00:09:00] Speaker 02:
I understand that, but that is based on the government's representation.

[00:09:11] Speaker 02:
The defense, because it was not given to them in a timely way, never had a chance to investigate that, to find out if there was more to that story.

[00:09:20] Speaker 02:
I understand what Your Honor is saying.

[00:09:24] Speaker 02:
If all of that is true, then it is rather de minimis.

[00:09:29] Speaker 02:
But if it's not, if there was more to the story, which I suspect there might have been, the defense was deprived of being able to go and investigate that because of the untimely disclosure.

[00:09:41] Speaker 03:
And that was, I think, the explanation there from the government.

[00:09:46] Speaker 03:
And the trial court admonished them, I think, that that should have been at least produced in camera.

[00:09:50] Speaker 02:
Right.

[00:09:50] Speaker 03:
Because it went to veracity.

[00:09:51] Speaker 03:
And veracity was going to be an issue about the Riverside stop.

[00:09:55] Speaker 02:
Right.

[00:09:55] Speaker 03:
And then the government took a risk.

[00:09:57] Speaker 03:
Ultimately, the court decided this evidence was inadmissible.

[00:10:01] Speaker 03:
But otherwise, it seems to me this would have been a problem.

[00:10:05] Speaker 02:
Right.

[00:10:06] Speaker 02:
And the only argument was it kind of fell through the cracks between changeovers of the US attorney.

[00:10:13] Speaker 03:
Lastly, I read the record differently.

[00:10:14] Speaker 03:
I read the record to say that an AUSA, not the trial attorney, had affirmatively decided that it wasn't going to be given to the attorney.

[00:10:25] Speaker 02:
You're right, Your Honor.

[00:10:26] Speaker 02:
I forgot that part of it, that he actually made an affirmative decision not to turn it over and not to submit it in camera, which at a minimum should have been done.

[00:10:37] Speaker 04:
And the government concedes that in this case, though.

[00:10:40] Speaker 02:
Fair enough.

[00:10:42] Speaker 02:
And woe be me to forget it.

[00:10:43] Speaker 04:
The question is the harmlessness of the error.

[00:10:46] Speaker 02:
OK, and I understand that point.

[00:10:49] Speaker 02:
And my best argument there is the accretion of the errors that were in this trial that deprived my client of a fair trial, that he had the combination of allowing this evidence, which I think was crucial to him, allowing the situation where

[00:11:14] Speaker 02:
Somehow it slips in the domestic violence to cause even more problems that quite upset the trial judge about it and he had a hearing on it, eventually decided that we could go forward regardless of it.

[00:11:31] Speaker 02:
We need to sit back for a moment and extract those errors and say, we didn't really have a complete fair trial.

[00:11:40] Speaker 02:
And let's just retry it again, knowing the information about the officer, excluding the 404B material because it should be suppressed, making sure that the witness doesn't allow these slips that went on to

[00:12:00] Speaker 02:
The way we refer to it is to slime the defendant even more.

[00:12:04] Speaker 02:
He's clearly angry at your client.

[00:12:07] Speaker 02:
Yes, clearly.

[00:12:08] Speaker 02:
There's no question about that.

[00:12:11] Speaker 02:
And so those kind of things came in.

[00:12:15] Speaker 02:
And I think that a new fair trial with those parameters would be, and we'll see where the chips fall in that regard, whether she's completely believable by a jury or not.

[00:12:29] Speaker 02:
So with that, I would submit, unless there's any other questions.

[00:12:32] Speaker 04:
Thank you very much.

[00:12:38] Speaker 00:
May it please the court, Daniel Zip, on behalf of the United States.

[00:12:41] Speaker 00:
Your Honor, the district court properly admitted the evidence from the Riverside stop.

[00:12:45] Speaker 00:
Rule 404B is an inclusive rule, and it's meant to exclude evidence that proves nothing but criminal propensity on the part of the defendant.

[00:12:54] Speaker 00:
Here, this evidence was extremely probative of the key issue in dispute in this case, and that was his knowledge.

[00:13:00] Speaker 00:
It was three months earlier, he was stopped in a car with the exact same amount of drugs, the same type of drugs, and the same type of packaging, and he admitted that it was his.

[00:13:09] Speaker 00:
That is extremely probative, and there's really nothing unfair about it that would substantially outweigh the probative value of that testimony.

[00:13:16] Speaker 03:
And both were distributable quantities of meth, yes?

[00:13:18] Speaker 00:
Yes, it was four.

[00:13:19] Speaker 03:
Packaged about the same way.

[00:13:20] Speaker 03:
Correct.

[00:13:21] Speaker 03:
Hidden in cars.

[00:13:22] Speaker 00:
It was devastating evidence for the defendant, certainly.

[00:13:26] Speaker 01:
But the government's position is that the prejudice was not unfair.

[00:13:33] Speaker 00:
Correct.

[00:13:33] Speaker 00:
Under old chief, there has to be something that would cause the jury to return a verdict other than what the evidence proves.

[00:13:40] Speaker 00:
And here, this is direct evidence of his knowledge.

[00:13:42] Speaker 00:
There's nothing unfair about introducing this evidence.

[00:13:45] Speaker 00:
It may be very damaging to the defendant, but it's not unfair in any way.

[00:13:50] Speaker 00:
I took the defense argument to be primarily that the court erred by not suppressing the evidence as opposed to straight forward.

[00:13:58] Speaker 01:
No, I think it's fair to take your friend's argument as because it was so devastating that the jury is going to improperly infer that guilty wants guilty again.

[00:14:10] Speaker 01:
I took that as your friend's argument that the unfairness is that

[00:14:17] Speaker 01:
When somebody is charged with bank robbery and you put in for 404 purposes a prior identical bank robbery, the jury is going to incorrectly say, did it once, did it again.

[00:14:30] Speaker 00:
Certainly, but the case law in this court is very clear that evidence of past drug dealing is admissible under 404B for the element of knowledge, that there's nothing unfair about showing that someone has dealt drugs in the past to prove that they weren't unknowingly dealing them this time.

[00:14:44] Speaker 00:
So it seems like it's not really a close question on the 404B.

[00:14:49] Speaker 03:
well because in this case your argument is the only thing open here was not whether they were drugs it's did the defendant have knowledge which is exactly what 403 and 404 go to that's correct your honor in this case he's sitting in the back seat as a passenger so I can certainly appreciate the defense arguments on this point I think it's a really tough argument when you get to 403 given that Cuevas did appear and did testify

[00:15:16] Speaker 00:
Her testimony seems to me to be to establish most of these facts We would agree your honor and it's not just her testimony alone It was her testimony in combination with the border crossing records that lined up when they were crossing with the photograph of her crossing south

[00:15:30] Speaker 00:
the car registration that confirmed who she said the car belonged to.

[00:15:33] Speaker 03:
Because he had said that he walked across the border, and then they showed through her testimony that that was not true, that they'd gone to Mexico to get drugs and came back.

[00:15:42] Speaker 03:
That's correct.

[00:15:43] Speaker 03:
So she undermined him in that way, as did the photographic evidence from the border.

[00:15:48] Speaker 00:
That's correct, and she identified herself and him in that picture.

[00:15:51] Speaker 00:
And the officer who first interviewed her at the port also testified that she said she was down there to party with her uncle.

[00:15:59] Speaker 00:
That confirmed her testimony that that's exactly what Mr. Castillo had told her to say when she crossed.

[00:16:04] Speaker 00:
So again, it's not just the sort of standalone testimony of this witness.

[00:16:07] Speaker 00:
It's fully corroborated.

[00:16:09] Speaker 03:
What about the prosecutorial misconduct count and the Brady claim?

[00:16:13] Speaker 00:
Sure.

[00:16:14] Speaker 00:
On the prosecutorial misconduct, the district court held a lengthy hearing post-trial on this issue.

[00:16:20] Speaker 00:
And what he found was that the first instance of domestic violence testimony came in response to the defense cross-examination, the mention of being punched in the face.

[00:16:29] Speaker 00:
And that couldn't be prosecutorial misconduct because we didn't elicit it.

[00:16:34] Speaker 03:
The court immediately after that... Can I ask you, before you go on, being punched in the face and having her tooth broken?

[00:16:39] Speaker 03:
That's the same testimony?

[00:16:40] Speaker 00:
That's the first one, yes.

[00:16:41] Speaker 03:
Okay, go ahead.

[00:16:42] Speaker 00:
Immediately after that, the court instructed the jury not to consider that and struck it from the record, and then took Ms.

[00:16:47] Speaker 00:
Cuevas aside with outside of the presence of the jury and said, don't reference domestic violence again unless you're directly asked about it.

[00:16:55] Speaker 00:
So the second time that it came up on the recall of Ms.

[00:16:59] Speaker 00:
Cuevas, all the prosecutor asked was, what happened to the piece of paper with the court date on it?

[00:17:04] Speaker 00:
And it was in response to that innocuous question that she volunteered about being stabbed and going back to New Mexico.

[00:17:11] Speaker 00:
So again, this was far different from the sort of intentional knowing admission of inadmissible evidence on the part of the prosecutors.

[00:17:19] Speaker 00:
And that first question was then, raise no objection, there was a few follow-up questions about sort of the logistics of why she didn't come to the court because she didn't have transportation and because she didn't have an ID.

[00:17:30] Speaker 01:
And then there was one more follow-up question sort of as- Well, on the objection part, the defendant was between a rock and a hard place there.

[00:17:38] Speaker 01:
because you look at the testimony on the second one and the jury might not infer that it was the defendant, but if the defense makes a big deal about it by objecting and getting a limiting instruction from the judge, it highlights for the jury that

[00:17:55] Speaker 01:
It probably was the defendant.

[00:17:57] Speaker 01:
So that's a very difficult position for a defense counsel to be in, given the nature of that testimony.

[00:18:03] Speaker 00:
Certainly.

[00:18:03] Speaker 00:
And it was ambiguous.

[00:18:05] Speaker 00:
Her response word for word was, after I had gotten stabbed and everything, I had went back to New Mexico.

[00:18:11] Speaker 00:
It's not clear from that.

[00:18:12] Speaker 00:
It almost suggests that she was stabbed in New Mexico, and it certainly doesn't tie back directly to Mr. Castillo.

[00:18:18] Speaker 01:
Although, honestly, counsel, in the real world, I think most juries, if they remember and pay attention to that, they're going to infer that it was the defendant, given what had happened up to that point.

[00:18:33] Speaker 00:
That's fair enough.

[00:18:33] Speaker 00:
But when that testimony came out, the court immediately stopped proceedings, asked the jury to disregard it and not to consider it.

[00:18:41] Speaker 00:
And under this court's case law, we assume that the jury followed the court's instructions.

[00:18:48] Speaker 00:
even if it was a mistake on the part of the prosecutor to ask these questions, knowing that there was a possibility of this coming out, the district court found that it would not have affected the outcome trials, such that it would support granting a new trial based on prosecutorial misconduct.

[00:19:06] Speaker 00:
And that's not only because the

[00:19:08] Speaker 00:
the curative instruction, but it's also, as I mentioned, that it was a sort of ambiguous statement that the council was given the opportunity for a curative instruction, and it declined it in light of the ambiguity.

[00:19:21] Speaker 00:
And of course, the evidence in this case was overwhelming.

[00:19:25] Speaker 00:
In a case as the district court recognized, this is far different from the average border bus.

[00:19:30] Speaker 00:
This was a case with a co-defendant who testified precisely what happened in the months leading up to this, that he was

[00:19:37] Speaker 00:
The defendant was drug dealing constantly that they had gone to Mexico once before.

[00:19:41] Speaker 00:
You had, of course, the 404B evidence, which was extremely damaging.

[00:19:45] Speaker 00:
You had his jail calls after the arrest and when she's instructing someone to delete all his Facebook posts.

[00:19:52] Speaker 00:
So this is really...

[00:19:54] Speaker 00:
You know, we often say the evidence is overwhelming in border bus cases, but this really was overwhelming evidence.

[00:19:59] Speaker 00:
And the idea that these two ambiguous statements that were stricken from the record would have somehow affected the outcome of trial, the district court properly found that this did not warrant a new trial.

[00:20:09] Speaker 03:
And the Brady violation?

[00:20:11] Speaker 00:
Certainly.

[00:20:12] Speaker 00:
We acknowledge that that should have been turned over at the first instance.

[00:20:17] Speaker 00:
It's not clear why that first prosecutor didn't make that decision, but I think what happened at the

[00:20:24] Speaker 00:
preparation for trial.

[00:20:25] Speaker 00:
The new prosecutor asked the sort of candid questions that were required to ask of all our law enforcement witnesses, one of which is do you have any past convictions?

[00:20:33] Speaker 00:
As soon as she learned of that, she turned it over to the defense.

[00:20:36] Speaker 00:
But at the end of the day, the court ruled that under Rule 609, it was inadmissible, that it was over 10 years old.

[00:20:42] Speaker 00:
The witness was 18 years old, and it was a minor theft involving eight quarters.

[00:20:48] Speaker 00:
So the fact that it was inadmissible by definition means that it would not have changed the outcome had it been provided earlier.

[00:20:56] Speaker 00:
And the defense did receive it in advance of trial, which this court has held is sufficient to meet the Brady

[00:21:03] Speaker 03:
I found this really disappointing.

[00:21:06] Speaker 03:
We've published on this pretty recently.

[00:21:08] Speaker 03:
In the Bruce case, we talked about where members of the U.S.

[00:21:13] Speaker 03:
Attorney's Office came forward and really insisted that because something wasn't material, in their view, they didn't have to produce it, which, of course, is upside down and backwards.

[00:21:22] Speaker 03:
And in that litigation, what was represented to us is that the manual has been changed and there's been teaching on this very point.

[00:21:30] Speaker 03:
And so I just want to express that I found it disappointing and concerning.

[00:21:35] Speaker 00:
Understood, Your Honor, but I would say that prosecutor had left the office at the time.

[00:21:39] Speaker 00:
We don't know exactly what happened the first time, but what we do know is that the trial prosecutor, as soon as she learned of this, immediately turned it over to the defense.

[00:21:47] Speaker 00:
Not even to the court in camera, but just turned it over as material.

[00:21:51] Speaker 00:
So certainly the first prosecutor should have done the same thing, but I don't know the details of what went into that decision.

[00:22:01] Speaker 00:
You've got lots of time left.

[00:22:02] Speaker 00:
I'm happy to answer any other questions that the court might have.

[00:22:07] Speaker 04:
Thank you.

[00:22:07] Speaker 04:
Thank you, counsel.

[00:22:13] Speaker 02:
Not sure I've ever said this before, but this panel really seems to grasp all the issues in the case, and I didn't hear anything new from government counsel.

[00:22:23] Speaker 02:
I would just leave you with the fact that

[00:22:26] Speaker 02:
There's been this series of errors that lead to a trial that just doesn't rise to the standard of fairness in that the errors are easily curable.

[00:22:39] Speaker 02:
And we'd have the time to be able to investigate if the Brady violation is not any more than what was represented by the court

[00:22:49] Speaker 02:
And that I would just ask that the court return this to be retried with those admonitions.

[00:22:57] Speaker 02:
Thank you.