[00:00:34] Speaker 04:
The question is, what changed?

[00:00:36] Speaker 04:
There are three things I want to focus upon here today.

[00:00:40] Speaker 04:
They show that this conviction must be vacated.

[00:01:08] Speaker 04:
the evidence destruction.

[00:01:11] Speaker 01:
I have a question, counsel.

[00:01:14] Speaker 01:
Is it your position that GPS devices and vehicles are per se exculpatory in drug importation cases?

[00:01:21] Speaker 04:
They per se have apparent exculpatory value, and the government acknowledged it as much with the quick Brady notice when they found a GPS device after the first trial.

[00:01:32] Speaker 04:
And then I go ahead.

[00:01:34] Speaker 04:
I'm sorry.

[00:01:35] Speaker 04:
I was just going to say, and because of

[00:01:43] Speaker 04:
of the vehicle.

[00:02:20] Speaker 04:
but Humpty Dumpty back together, Mr. Gonzales was denied the right.

[00:02:25] Speaker 03:
I didn't understand the government's expert to say that it was not possible to put it back together, just that he couldn't figure out how these things were connected.

[00:02:34] Speaker 03:
So here's my question, because I think defense had 11 months after the discovery in order to have an expert come in and try to reconstruct it.

[00:02:43] Speaker 03:
So do we know that it is impossible to reverse engineer how this might have been connected

[00:02:56] Speaker 04:
but Humpty Dumpty back together.

[00:03:25] Speaker 04:
The expert the government put out here now, so it's my problem now.

[00:03:32] Speaker 04:
The government's expert was very, very thorough, as everyone acknowledged, to some laughter in the courtroom.

[00:03:39] Speaker 04:
In fact, he's an expert used by both the defense community and the government, and so him testifying that it wasn't apparent how these would be put back together.

[00:03:48] Speaker 04:
My best read of the transcript is that

[00:04:13] Speaker 04:
And so he could he did know friends

[00:05:27] Speaker 03:
examination of the government's expert, the expert conceded that it was possible that the connection could cut off the fuel supply.

[00:05:35] Speaker 03:
In essence, that whatever the defense wanted to gain out of it essentially came in through cross-examination anyway.

[00:05:43] Speaker 04:
I would disagree as to the strength of the evidence around it, because it's one thing

[00:05:56] Speaker 04:
This was technically set up to do this.

[00:05:59] Speaker 04:
That strengthens the claim.

[00:06:01] Speaker 04:
The Cooper case provides a useful analogy here.

[00:06:08] Speaker 04:
So that was the case where the drug making equipment was destroyed before trial and the government was even willing to stipulate this drug equipment would do what the defense said it would do.

[00:06:19] Speaker 04:
And this court said that is insufficient because that doesn't provide the same tangible detail, the same strength of evidence to the jury.

[00:06:27] Speaker 00:
that thing to one of the earlier questions about was there actually a destruction of evidence here.

[00:06:31] Speaker 00:
If this particular witness couldn't put it back together, it doesn't mean that it couldn't be put back together, correct?

[00:06:38] Speaker 00:
Unlike the pots or the kitchen that was destroyed in the case that you just referred to, I mean, we don't know that this can't be put back together.

[00:06:45] Speaker 00:
We don't know.

[00:06:46] Speaker 00:
You gave the analogy of an archaeologist that has a skeleton and then pieces of bone being taken away, but in this case,

[00:06:58] Speaker 00:
and the expert testified that the wires were essentially unplugged as opposed to cut, and that it was only the earlier, another witness, another government law enforcement officer that referred to wires being cut, but not this expert.

[00:07:51] Speaker 04:
I read that to say it was not unplugged because he says things like, I try to preserve as much wire as possible.

[00:08:00] Speaker 04:
He uses the word disconnected.

[00:08:02] Speaker 04:
I don't see the word unplugged.

[00:08:04] Speaker 04:
And then when he also says it wasn't possible for me to tell how these were all wired together, I take that as that can't be reassessed.

[00:08:18] Speaker 04:
If you guys have no further questions about the destruction of evidence, I'm happy to move on to the drug price expert.

[00:08:43] Speaker 04:
testimony and this problem is not academic.

[00:09:16] Speaker 03:
arguments and with the prosecutors fully

[00:09:52] Speaker 03:
percipient experience with using these prices in her own controlled purchases, relying on it for funding, for other things.

[00:10:05] Speaker 03:
It doesn't seem as if it was just a wash of information from others, but that she contextualized it in terms of its reliability in her own experience.

[00:10:15] Speaker 04:
But the expert also testified that when she did undercover operations, she had to do some sort of synthesis, and that's the magic word

[00:10:44] Speaker 04:
cannot fully explain how it was calculated and then did some multiplication in front of the jury.

[00:10:50] Speaker 04:
That is not the synthesis that Vera requires.

[00:10:53] Speaker 04:
So this bit of testimony being inadmissible says nothing about maybe she provided context about her experience or maybe even that she was a qualified expert.

[00:11:03] Speaker 04:
Just with this testimony, it was not reliable expert testimony.

[00:11:10] Speaker 04:
The Smith case from this

[00:11:28] Speaker 04:
There are three last things I want to get to today, and that is what was said at closing argument.

[00:11:37] Speaker 04:
The prosecutor said the following, you've got to be kidding.

[00:11:39] Speaker 04:
This doesn't make any sense.

[00:11:41] Speaker 04:
It's not based on reality.

[00:11:43] Speaker 04:
So you've heard the story that is ridiculous on its face.

[00:12:16] Speaker 04:
tell us a liar.

[00:12:17] Speaker 04:
And when you consider these errors, you could separately or together

[00:13:14] Speaker 02:
we cite in our papers, I believe the case is Yijin Zhao.

[00:13:51] Speaker 02:
And even if you look at the pictures, we would disagree with the assertion that was just made by the defense that somehow the pictures in our SER show that these wires were cut.

[00:14:02] Speaker 02:
But really, you know, it also goes to the bigger point to prove a trombeta violation.

[00:14:07] Speaker 02:
You not only have to show bad fate destruction, you have to show that you didn't have an opportunity for reasonably comparable

[00:14:20] Speaker 02:
look at this, I think that basically ends the claim.

[00:14:24] Speaker 02:
And I know the defense, they put strong emphasis on a case called Cooper and Cooper, that was the one where the methamphetamine, you know, the government said it was a methamphetamine lab.

[00:14:33] Speaker 02:
The defendant said it was, you know, to make some kind of medicine.

[00:14:38] Speaker 02:
When I reread that case yesterday, that was objected to.

[00:15:16] Speaker 02:
They could have gotten the manual for that particular...

[00:16:02] Speaker 02:
and if they wanted to make a trombetta claim out of it, they could have, so.

[00:16:07] Speaker 01:
Also, I have a question about that.

[00:16:08] Speaker 01:
Not the trombetta claim in particular, but about the inspections that Ken Davis did.

[00:16:16] Speaker 01:
It's my understanding that there was a third inspection done, but that the defense was not informed of that.

[00:16:22] Speaker 01:
Is that correct, and why would they not have been informed?

[00:16:25] Speaker 02:
Well, I think you are correct with the facts on that.

[00:16:31] Speaker 02:
I mean, it's evidence in the government's custody.

[00:17:03] Speaker 02:
of court but you know again in retrospect you know maybe maybe they should have been there that then maybe this claim never would have been brought up we acknowledge that but again the way that the claims presented

[00:18:01] Speaker 02:
just pointed out, the expert never denied any of the possible inferences that the defense wanted to put on this evidence.

[00:18:09] Speaker 02:
They were able to argue that, hey, somebody could have had ears in the car, or somebody could have been falling.

[00:18:15] Speaker 02:
And in fact, the defense also was able to put some mud on the government by saying, look, they didn't find this until their third inspection.

[00:18:22] Speaker 02:
So on that sense, I don't believe that the third

[00:18:34] Speaker 02:
I think with that I'll move on to the value expert.

[00:18:39] Speaker 02:
Again, it's always important to keep

[00:19:16] Speaker 02:
You also have testimony in the record that, you know, she didn't just, we didn't just call her and say, okay, we're going to qualify as an expert and have her read some list off.

[00:19:24] Speaker 02:
She went through and detailed all her bases of expertise and the fact that she had run her own officer or her own investigation.

[00:20:00] Speaker 02:
guide compiled.

[00:20:02] Speaker 02:
It's from only law enforcement.

[00:20:04] Speaker 02:
You have to present

[00:20:30] Speaker 02:
was also on plan error review, where they said under the confrontation clause,

[00:20:57] Speaker 02:
said that she relied not only on the price guide, but also her conversations with other agents and also her dealings with other value experts.

[00:21:06] Speaker 02:
And then she said in her 15 years of experience that the price value was sufficient.

[00:21:11] Speaker 02:
And the discord in Gomez, you know, it is a very hard sell, I think, for the defense on plain error because they said it's already a matter of degree between when expert testimony violates or does not violate the confrontation clause.

[00:22:14] Speaker 03:
with the district court not allowing counsel to use impeachment from the first trial, given its prominent rule in this case.

[00:22:24] Speaker 02:
The government's response to that is that no, there wasn't a problem, and as we know, limitations on cross-examination are still within the district court's wide discretion.

[00:22:33] Speaker 02:
What we pointed out, first of all,

[00:23:03] Speaker 02:
where they fit, all that kind of thing, but really to get to it.

[00:23:09] Speaker 03:
Why wouldn't it come up, for example, in the discussion about how the gas tank was reconfigured?

[00:23:16] Speaker 03:
Why wouldn't that be a natural place where the smell of a reconfigured gas tank might come up as something that would alert a driver to it?

[00:23:27] Speaker 02:
Maybe you know just about the kind

[00:23:33] Speaker 02:
I mean, I'm just saying that this was a car that the defendant owned and so one of our big points of evidence was, you know, somebody would have needed a lot of time to get in here.

[00:23:40] Speaker 02:
I mean, I'm just saying that this was a car that the defendant owned and so one of our big points of evidence was, you know, somebody would have needed a lot of time to get in here.

[00:24:06] Speaker 02:
That's one thing, but more importantly, I think is the following, you know, I think the defense frames this issue.

[00:24:13] Speaker 02:
They were not denied impeachment by omission.

[00:24:16] Speaker 02:
They were just denied that particular kind, what they were allowed to do.

[00:24:41] Speaker 02:
pages of our brief to kind of out to show the defense you know they did a good job they said hey you trained you know that reports are important that they'll be relied upon by the courts by this you wrote you know you mentioned this you mentioned that and then the final thing is you didn't mention anything about the smell and then they were also able to argue that in closing argument and I think on reply even defense says well you know sure it would have been maybe it would have been one more piece of

[00:26:10] Speaker 02:
I only have a minute and a half on the misconduct.

[00:26:13] Speaker 02:
If I could just say briefly, I think we're going to stand by our, obviously we stand by our arguments.

[00:26:18] Speaker 02:
I think the authorities out there, the convictions are not to be lightly overturned based on a prosecutor's words alone.

[00:26:26] Speaker 02:
That closing argument, it was succinct.

[00:26:31] Speaker 02:
The court is held in.

[00:26:44] Speaker 02:
And when the government marshaled all the evidence it did, you know, when the prosecutor makes those comments, of course, at this point, the trial, the jury's expecting to hear some arguments.

[00:26:54] Speaker 02:
Like, you know, you showed us all these days of testimony.

[00:26:56] Speaker 02:
I don't think that the record shows any kind of crossing the line by the prosecutor as far as vouching, usually the big concern.

[00:27:12] Speaker 01:
Let me interrupt you there because I do want to follow up then.

[00:27:15] Speaker 01:
So then is it your position that so long as a prosecutor doesn't use the term I or we, then they can basically say whatever they want in closing?

[00:28:41] Speaker 00:
And I know you have two arguments.

[00:28:44] Speaker 00:
One is that the trial court applied the incorrect standard, but if the right standard is applied, the Jenkins standard, can you point to where in the record that Officer Del Rio testified in the first trial that would have been a natural place for circumstances where it would have come out that he also smelled gasoline?

[00:29:10] Speaker 04:
And that's where there was repeated discussion about the gas tank and the fuel sending unit.

[00:29:17] Speaker 04:
And that would seem to me to be a very natural spot to talk about the smell of gasoline.

[00:29:22] Speaker 00:
And – And you respond to the counterargument that that was a testimony about visually what he – what the officer found when he did the inspection as opposed to, I mean, something that would naturally call for a, well, what did you smell?

[00:29:52] Speaker 04:
It's on the totality of the circumstances.

[00:29:55] Speaker 04:
Is this a situation where it'd be natural to talk about this fact?

[00:29:59] Speaker 04:
And because the agent was talking at length about the gas tank and the fuel sending unit, that'd be in the unusual things found there.

[00:30:08] Speaker 04:
That would be a very natural spot to talk about.

[00:30:10] Speaker 04:
By the way, there was fuel leaking and it smelled like gasoline.

[00:30:13] Speaker 00:
I'm thinking about lawyers always advise the witnesses don't answer anything.

[00:30:19] Speaker 00:
Does that change your opinion all about whether or not it'd be natural, given the questions that were asked?

[00:30:24] Speaker 04:
If the Assistant U.S.

[00:30:26] Speaker 04:
Attorney in that case said, what did you notice visually about the gas tank or the fuel sending in it, this would be a much harder issue.

[00:30:33] Speaker 04:
But that's not what the attorney asked.

[00:30:36] Speaker 04:
The attorney asked, what did you notice that was unusual here?

[00:30:40] Speaker 04:
And again, the government talked about prejudice on this issue, and it seems to be trying to do a divide and conquer analysis here.

[00:30:53] Speaker 04:
erroneous expert testimony, the not-just-hard-but-foul-blows-and-closing argument, that is enough to undermine confidence in the verdict.

[00:31:03] Speaker 04:
You look at cases like Kerr, McCoy, Hermannek, Kojayan, a prosecutor, it's not just about vouching.

[00:31:10] Speaker 04:
They are not allowed to state their personal opinions about a person's veracity or the strength of the evidence.

[00:31:16] Speaker 04:
The one less thing I'd like to know about the price list, as I ran out of time, is that even

[00:31:25] Speaker 04:
about what the prices were.

[00:31:26] Speaker 04:
She didn't provide any synthesis on that information.

[00:31:29] Speaker 04:
She merely repeated, to the extent she remembered what they said, she merely repeated, they had some numbers that fell somewhere in that range.

[00:31:36] Speaker 04:
And she testified that no one, at least as she could remember, said that the high end was a price they'd seen in the wild.

[00:31:43] Speaker 04:
The experts said that having a range would not be sufficient