[00:00:00] Speaker 03: Go ahead and hear from Ms. [00:00:03] Speaker 03: Agatstein. [00:00:04] Speaker 03: Is that? [00:00:04] Speaker 00: Agatstein. [00:00:05] Speaker 03: Agatstein. [00:00:05] Speaker 00: Close. [00:00:06] Speaker 03: There you go. [00:00:06] Speaker 03: Got it. [00:00:07] Speaker 03: Thank you. [00:00:10] Speaker 00: All right. [00:00:10] Speaker 00: Good morning, Your Honors. [00:00:11] Speaker 00: Jesse Agatstein, Federal Defenders, on behalf of Mr. Sciordia. [00:00:16] Speaker 00: I'm going to aim to reserve three minutes, and I'll watch my clock. [00:00:19] Speaker 00: So in this case, the prosecutor moved to dismiss. [00:00:23] Speaker 00: Defense counsel asked to brief, whether it be with or without prejudice. [00:00:27] Speaker 00: And the magistrate judge responded, quote, [00:00:29] Speaker 00: No, I'm going to set the matter for trial. [00:00:32] Speaker 00: That's at ER 253. [00:00:34] Speaker 00: So at that moment, the magistrate judge erred under Garcia Valenzuela, Rule 48, and separation of powers principles. [00:00:42] Speaker 00: So for that reason, as well as the corpus delicti. [00:00:47] Speaker 02: Is your position that he erred by setting it for trial, regardless of whether he implicitly denied the motion, or is that he implicitly denied the motion implicitly part of your argument? [00:00:59] Speaker 02: Because before it seems like, maybe not you, but your client's position was that he had not denied the motion, the judge had not denied the motion. [00:01:08] Speaker 02: You would agree with that, right? [00:01:10] Speaker 00: Yeah, they had not ruled out the motion. [00:01:12] Speaker 02: And now I think your argument is that he had somehow denied the motion. [00:01:15] Speaker 02: I'm trying to figure out how much your argument turns on the fact that he denied the motion, or do you just think that setting it for trial, regardless of whether he denied the motion, was reversible error? [00:01:26] Speaker 00: I think setting the matter for trial in response to a motion to dismiss is an implicit denial. [00:01:31] Speaker 00: And I think that's what Garcia Valenzuela has to say. [00:01:33] Speaker 02: But don't you think it's at least possible, putting aside this case, to say, OK, you filed a motion to dismiss. [00:01:41] Speaker 02: I'm going to address the motion to dismiss. [00:01:43] Speaker 02: But there's this thing that we can't address today, because you basically told me you're not ready to argue it today. [00:01:48] Speaker 02: And so I'm going to set it for trial. [00:01:50] Speaker 02: It's kind of like a housekeeping thing. [00:01:54] Speaker 02: But, you know, we'll address the motion to dismiss before trial or we won't. [00:01:57] Speaker 02: We'll go to trial. [00:01:58] Speaker 02: I just want to make sure that if we don't get it addressed, if we don't get it, that we'll have a trial date, right? [00:02:04] Speaker 02: In other words, why setting it for trial, you know, just doing that ministerial thing there in itself? [00:02:10] Speaker 00: So I think here it was more than a ministerial task, but I think Garcia Valenzuela reverses for setting it for trial in response to a government motion to dismiss. [00:02:20] Speaker 00: And I think that's because the two are inconsistent. [00:02:23] Speaker 02: Would you agree that the— [00:02:25] Speaker 02: I understand, but would you agree that the district court judge unless, or the magistrate, I think it was the magistrate, unless, and I don't remember if it was a he or she, but it was a he or she. [00:02:34] Speaker 02: It was a he. [00:02:36] Speaker 02: He. [00:02:36] Speaker 02: Unless he was lying later, you definitely get the impression that he kind of, even though he set it for trial, he's still kind of hoping that it would, that the parties would get together and that there would be, and the dismissal would become uncontested, and that it would get dismissed. [00:02:54] Speaker 02: You know, to extent your argument is that, well, when he set up for trial, he was kind of strong-arming the—it wasn't—doesn't seem like that's—he actually was kind of still hoping it would get dismissed. [00:03:02] Speaker 02: And when the trial date came and they weren't ready and the government appeared to withdraw his motion, it was almost like the magistrate was—judge was disappointed. [00:03:10] Speaker 00: Yeah, I think what happened at the motion hearing is the magistrate judge was annoyed. [00:03:14] Speaker 00: I think what happened is substitute defense counsel showed up, was not prepared to argue whether the issue be with or without prejudice, original defense counsel wasn't there, and the magistrate judge said, you know, screw this, I'm setting up for trial. [00:03:25] Speaker 00: What's the earliest trial date? [00:03:27] Speaker 00: No, you do not have time for briefing. [00:03:29] Speaker 00: And he set it for trial 11 days later. [00:03:30] Speaker 00: And Rule 48 gives very little. [00:03:33] Speaker 03: That's not. [00:03:33] Speaker 03: That's not wrong to do that. [00:03:35] Speaker 03: I mean, he clearly couldn't decide the motion that day because there was a dispute about whether it should be with or without prejudice. [00:03:43] Speaker 03: You're saying it was error because he should have just dismissed. [00:03:46] Speaker 03: He should have just said, well, we're going to go ahead and dismiss it without prejudice. [00:03:49] Speaker 00: He either should have said that or said, OK, I'm going to set another hearing for you to argue it. [00:03:53] Speaker 00: But I think it's the fact of setting up for trial. [00:03:55] Speaker 03: It really came back up. [00:03:56] Speaker 03: That's what I'm confused about, because the motion came back up. [00:04:00] Speaker 03: And the government, well, the government didn't really renew it. [00:04:04] Speaker 00: No. [00:04:04] Speaker 00: So the motion didn't really come back up. [00:04:06] Speaker 00: Defense counsel filed a motion to dismiss the morning of trial. [00:04:10] Speaker 00: So I think it's worth pointing out that the magistrate judge acknowledged at trial that dismissal without prejudice was off the table. [00:04:16] Speaker 00: Whatever happened at that motion hearing, that was no longer available. [00:04:20] Speaker 00: Because he says that ER 135 either is going to force the government to dismiss with prejudice, I would dismiss for want of prosecution, [00:04:28] Speaker 00: or you'd be faced with the situation we wound up with, which is . [00:04:32] Speaker 02: . [00:04:32] Speaker 02: . [00:04:34] Speaker 02: He said that at the morning of trial. [00:04:35] Speaker 02: The morning of trial. [00:04:37] Speaker 02: But I think the judge also made it clear that the judge's position on that was based on his perception that the government had in the meantime implicitly withdrawn its motion, and the government did nothing to . [00:04:50] Speaker 02: . [00:04:50] Speaker 02: . [00:04:50] Speaker 02: I mean, the government could have said, no, no, no, we haven't. [00:04:51] Speaker 02: It's still on the table. [00:04:54] Speaker 02: Maybe someone happened, but it wasn't just the judge acting unilaterally. [00:04:58] Speaker 02: The judge at least thought that the government had withdrawn its motion, correct? [00:05:01] Speaker 00: The magistrate judge did think that. [00:05:04] Speaker 00: The government never did withdraw a motion, and actually the day that the . [00:05:07] Speaker 00: . [00:05:07] Speaker 02: . [00:05:07] Speaker 02: But if the judge says, I think you've implicitly withdrawn your motion in open court, and the government doesn't do anything, I think most of us would think, well, it sounds like that's what they did. [00:05:17] Speaker 00: I think what happened is very murky, but I think Garcia Valenzuela reverses when a judge sets a case for trial. [00:05:25] Speaker 04: I think it's worth looking to the— I'm having trouble with what rule you're proposing, because if the magistrate says—or if the government orally moves to dismiss and defense counsel says, I object, I'd like to have a little bit of time to prepare briefing, if the magistrate said, OK, I'll give you a few days to brief this question— We wouldn't be here. [00:05:47] Speaker 04: Is that error? [00:05:48] Speaker 00: No. [00:05:49] Speaker 04: Why not? [00:05:50] Speaker 04: Because that is not... But what if the magistrate said, I'm setting this for trial, but I'll give you briefing in the meantime. [00:05:57] Speaker 04: To Judge Van Dyck's point, setting it for trial doesn't necessarily mean that it's automatically dismissed or not. [00:06:04] Speaker 04: It's a more murky phrase. [00:06:06] Speaker 04: And so we're trying to decipher what meaning we should give to it. [00:06:10] Speaker 00: Yeah, well, I think Garcia Valenzuela controls and says what the meaning is. [00:06:13] Speaker 00: There, the trial judge declared that trial would go forward in response to a government motion to dismiss. [00:06:20] Speaker 00: And this court said that's error under Rule 48. [00:06:22] Speaker 02: Well, why don't you finish on the question that Judge Santor just asked, because that's actually really important. [00:06:27] Speaker 02: A slight change to the facts here, he says, I'm sending it for trial, but go ahead and brief your thing you want to brief. [00:06:34] Speaker 02: And we'll address it the morning of trial and maybe won't have trial. [00:06:38] Speaker 02: If that had been what happened, would your position be that that's reversible? [00:06:42] Speaker 00: Yes, I think so. [00:06:43] Speaker 00: And I think it's just because trial is inconsistent with the government motion to dismiss. [00:06:47] Speaker 04: Ordering the government to... Well, don't you have an invited error problem in that case? [00:06:50] Speaker 04: I mean, it would seem to me that if defense counsel is asking for additional time to respond, to have input on it, and the court exceeds to that request, but you're saying under Garcia Valenzuela, that's error, isn't the defense inviting error in that instance? [00:07:07] Speaker 00: There might be an issue of invited error. [00:07:09] Speaker 00: Maybe it's not appealable. [00:07:10] Speaker 00: Maybe it's not an issue overall. [00:07:13] Speaker 00: But forcing the government to prepare for trial, show up the morning of trial when the government says, I don't want to try this case, is beyond the boundaries of separation of powers. [00:07:21] Speaker 03: I don't know that that's what the government said. [00:07:22] Speaker 03: And I think that's part of the problem here. [00:07:24] Speaker 03: And I don't know how to [00:07:26] Speaker 03: ferret it out in this case because you don't know why the government's asked to dismiss it. [00:07:31] Speaker 03: In hindsight, we know why. [00:07:32] Speaker 03: Because they didn't, it wasn't because they were trying to exercise prosecutorial discretion and not prosecute your client. [00:07:40] Speaker 03: It was because they didn't have a witness. [00:07:43] Speaker 03: They didn't, they weren't ready for trial. [00:07:45] Speaker 00: It was both. [00:07:46] Speaker 00: It was both that because the government said at trial. [00:07:48] Speaker 03: Well, I don't think it was both. [00:07:50] Speaker 03: Because if it was both, then they would have renewed their motion. [00:07:56] Speaker 03: And they never did. [00:07:57] Speaker 00: They said at trial that it was a combination of a witness being unavailable. [00:08:04] Speaker 00: And then they said, and also because he had no immigration history, no criminal history, we weren't going to try and strong arm. [00:08:08] Speaker 00: Well, right. [00:08:09] Speaker 03: But they didn't say. [00:08:11] Speaker 03: We just made a decision that this wasn't prosecutable. [00:08:15] Speaker 03: I mean, they always have some discretion, but I think it's fair to say, we'll ask the government here, but that if they didn't have the witness problem, they wouldn't have made the motion. [00:08:25] Speaker 00: At the end of the day, I don't think it matters. [00:08:28] Speaker 03: I think the- Why doesn't it matter? [00:08:30] Speaker 03: Because the issue is that the whole reason we've adopted this rule, and rightfully so, is the separation of powers issues, that the court should not force the prosecution. [00:08:43] Speaker 03: And so if the government has the choice here and chooses to proceed, I don't understand the separation of powers problem that we have. [00:08:53] Speaker 00: Well, so I think [00:08:56] Speaker 00: that they had chosen to not proceed. [00:08:58] Speaker 00: And then the magistrate judge says, no, I'm setting the matter for trial. [00:09:02] Speaker 00: What's the earliest trial date we have? [00:09:03] Speaker 00: We're going to trial. [00:09:04] Speaker 00: 11 days later. [00:09:05] Speaker 03: Well, be careful. [00:09:06] Speaker 03: He never says no. [00:09:07] Speaker 03: I think that's what your problem is. [00:09:10] Speaker 00: ER-253, he says, no, I'm setting the matter for trial. [00:09:14] Speaker 02: Yes, he never said no, I'm denying the motion. [00:09:17] Speaker 02: The no is a little ambiguous, but in context, I think, especially given what the judge says later about that he was hoping it would still be dismissed later, it doesn't seem like he was saying no to the [00:09:30] Speaker 02: motion to dismiss, he was saying no to, I'm not going to give you... I think it was no to the briefing itself, because the defense counsel was asking for supplemental briefing. [00:09:39] Speaker 04: He said, no, I'm setting the matter for trial. [00:09:41] Speaker 00: Yeah, OK. [00:09:42] Speaker 00: So I think the setting the matter for trial in Garcia Valenzuela is the same thing. [00:09:45] Speaker 00: You know, I looked at the district court docket in Garcia Valenzuela. [00:09:47] Speaker 00: Obviously, it's an old case. [00:09:48] Speaker 00: It's from, you know, it was brought in 1998. [00:09:51] Speaker 00: But the docket there never formally says the district court denied the motion to dismiss in that case. [00:09:57] Speaker 04: Let me, here's what I think might be distinct about Garcia Valenzuela. [00:10:01] Speaker 04: In that, as I understand it from reading it, the court asks to see what the defendant wants to do with these charges, and the defendant says, I want to go forward with trial. [00:10:13] Speaker 04: And then that's when the court sets the matter for trial. [00:10:16] Speaker 04: But then right after, I think in the same hearing, [00:10:18] Speaker 04: is they start entering into a plea colloquy where the defendant would admit to two of the charges pled. [00:10:25] Speaker 04: It means in my view that that necessarily means that the court had to have dismissed the government's motion dismissed because you can't enter into that sort of plea colloquy [00:10:35] Speaker 04: in order to not have dismissal beforehand. [00:10:39] Speaker 04: But here I think it's kind of a murkier question whether setting the matter for trial meant that it was a denial of the government's motion right then and there as opposed to deferring the ruling on it. [00:10:52] Speaker 00: I think the fact that the government never formally withdrew its motion, filed a trial brief that night, showed up prepared to go forward is [00:10:59] Speaker 00: a similar situation to taking the plea. [00:11:03] Speaker 00: Both involve implicit denials, right? [00:11:06] Speaker 00: The court never says denying your motion to dismiss, but both are inconsistent with dismissing the case. [00:11:14] Speaker 02: I know you're running low on it. [00:11:17] Speaker 02: What about waiver? [00:11:17] Speaker 02: The fact that early on I asked you, didn't he take the other position that they had not been denied below? [00:11:25] Speaker 02: Doesn't that mean that can you take the opposite position of what his counsel took in front of the magistrate? [00:11:33] Speaker 00: I don't think it's the opposite position, but more importantly, the government didn't address waiver, argue waiver, so we're in sort of a wave [00:11:39] Speaker 00: waiver situation. [00:11:41] Speaker 00: But I think counsel saying you didn't explicitly rule on the motion and us saying he implicitly denied is not so inconsistent. [00:11:48] Speaker 00: But I think we're in a waived waiver, so I don't think this court has to get there. [00:11:51] Speaker 04: Counsel, why would the defense have gotten in the way of the government voluntarily dismissing this case? [00:11:58] Speaker 04: For the life of me, I don't understand it. [00:12:00] Speaker 04: And I understand substitute counsel came in, but it's not as if central counsel didn't correct it after the fact immediately after. [00:12:08] Speaker 04: I'm just wondering why we're even here when there could have been a dismissal on this low-level charge, and that would have been that for the client. [00:12:15] Speaker 00: Yeah, I think what happened is defense counsel, substitute defense counsel, wasn't prepared. [00:12:20] Speaker 00: The magistrate judge got angry. [00:12:23] Speaker 04: But regular counsel could have circled back and said, all right, I understand what happened. [00:12:29] Speaker 04: Government, we would not oppose the voluntary dismissal. [00:12:31] Speaker 00: Yeah, so part of what happened is regular defense counsel ordered the transcript and said, what the hell happened? [00:12:36] Speaker 00: And then they didn't get the transcript until the morning of trial. [00:12:39] Speaker 00: There were some delays in transcripts. [00:12:43] Speaker 00: And by that point, I think the government proceeded to trial. [00:12:47] Speaker 00: And so at that point, it was too late. [00:12:49] Speaker 03: But I'll- Do you want to reserve? [00:12:52] Speaker 00: Yes, thank you. [00:12:52] Speaker 00: Thank you so much. [00:12:53] Speaker 00: Thank you. [00:12:54] Speaker 03: We'll hear from the government. [00:13:02] Speaker 01: Good morning, Your Honors. [00:13:03] Speaker 01: May it please the Court, Amy Wong on behalf of the United States. [00:13:06] Speaker 01: I'd like to start by addressing Judge Nelson's question about why the government moved to dismiss in the first place. [00:13:12] Speaker 01: At ER 136, the government prosecutor explained that one of the imperative witnesses was unavailable through the rest of the year. [00:13:21] Speaker 01: In addition, [00:13:22] Speaker 01: In consideration of the holidays, the busy calendars, as well as Mr. Ciordia's lack of criminal and immigration history, the government decided that this was not a case that it was going to pursue without that witness. [00:13:35] Speaker 01: However, in light of defense counsel's request for additional time, [00:13:40] Speaker 01: objection to the motion to dismiss. [00:13:43] Speaker 01: The government resolved its scheduling issues and it was clear by the time of the motion hearing on the date of trial, the government had withdrawn its motion to dismiss and was ready to proceed to trial. [00:13:53] Speaker 03: Why didn't the government more formally withdraw the motion to dismiss? [00:13:56] Speaker 03: Is it just because things were moving quickly? [00:13:59] Speaker 01: Your honor, it's true that the government never explicitly said, we're revoking our motion, we're withdrawing our motion, but it's clear from the record that the government did revoke. [00:14:09] Speaker 01: The government immediately filed its trial. [00:14:11] Speaker 04: Where is it clear from the record? [00:14:14] Speaker 01: at ER 237, 238. [00:14:16] Speaker 04: I mean, I'm a little skeptical of the argument that the government filing a trial motion is tantamount to a withdrawal because I don't think the trial brief ever mentions the word withdrawing. [00:14:27] Speaker 04: And one of the bases for having moved to dismiss was the unavailability of this witness [00:14:34] Speaker 04: which I think the government concedes didn't resolve itself for another week and a half. [00:14:39] Speaker 04: So why would the government have withdrawn its motion at that point on the night of, you know, when it filed the trial brief? [00:14:45] Speaker 01: Well, Your Honor, at 237, 238, the magistrate judge stated having not ruled on the motion, the government was free to revoke or withdraw its motion to dismiss. [00:14:58] Speaker 01: So right now there's nothing before me except for the defense motions and not a government motion to dismiss. [00:15:04] Speaker 01: and the government council confirmed, Your Honor, we're ready to proceed with trial. [00:15:08] Speaker 04: I mean, I think a more fair reading of the record would be that by the time that trial came around, government was prepared to move forward. [00:15:15] Speaker 04: And at that point, at least, it was withdrawing its motion, as opposed to beforehand at some nebulous stage. [00:15:22] Speaker 04: But I was having some difficulty understanding that point, because it doesn't seem to me as if the trial brief itself is the withdrawal. [00:15:31] Speaker 04: But I assume, would you say that it doesn't make a difference if the government's ready to proceed to trial on the day of? [00:15:38] Speaker 01: That's correct, Your Honor. [00:15:39] Speaker 01: The trial brief was the first step to withdrawal. [00:15:41] Speaker 01: It was the first indication that the government would be ready for trial 11 days after the initial motion hearing. [00:15:47] Speaker 01: And because the magistrate judge had continued the motion hearing 11 days to the morning of the trial, at that point, that was a time for either the government to renew its motion or say we're ready to proceed. [00:16:00] Speaker 01: And the government counsel did [00:16:01] Speaker 01: confirmed they were ready to proceed. [00:16:03] Speaker 03: So let me throw out a couple hypotheticals. [00:16:05] Speaker 03: Say you get to the trial and you haven't resolved the witness problem. [00:16:08] Speaker 03: What would the government have done then? [00:16:10] Speaker 03: Would they have renewed the motion and said, we've got to dismiss this, Your Honor? [00:16:13] Speaker 01: Potentially. [00:16:14] Speaker 01: Potentially. [00:16:15] Speaker 01: If they hadn't resolved. [00:16:16] Speaker 03: Or they may have just said, well, we've got to make a litigation strategy. [00:16:20] Speaker 03: Our chances of conviction have gone down. [00:16:23] Speaker 03: But given the circumstance, we're going to go forward. [00:16:27] Speaker 01: And there would have been a week and a half [00:16:30] Speaker 01: to discuss with defense counsel whether a motion to dismiss with or without prejudice at that point would have been a joint motion. [00:16:39] Speaker 01: But because the government, again, withdrew its motion, whether implicitly or explicitly through its actions, there was no motion to dismiss. [00:16:47] Speaker 03: Does the government view this case as infringing upon its prosecutorial discretion, what the judge did here? [00:16:55] Speaker 01: know your honor because what the judge did was not an abuse of discretion based on the record the judge reserved ruling on the motion to dismiss and so it gave time for defense counsel as they asked for to brief the issue. [00:17:09] Speaker 01: and even defense counsel in their second briefing. [00:17:12] Speaker 04: Well, can I ask about it? [00:17:14] Speaker 04: It seems as if on that first date, the magistrate very clearly said no to further briefing. [00:17:19] Speaker 04: So what in the record gives you the indication that it gave time for defense counsel to file more briefing on the issue? [00:17:28] Speaker 01: Because at ER 253, later in the record, the court says, if a signed defense counsel wants to bring another motion, I'll hear it on that date. [00:17:38] Speaker 01: That's fine, but for the life of me, I don't understand this. [00:17:40] Speaker 04: But so that would suggest, I mean, I think one could, and this is the murkiness of the record, but one could construe that as the magistrate having denied the government's motion, and so therefore the defense isn't going to file subliminal briefing on the government's motion. [00:17:56] Speaker 04: If the defense wants to file its own motion to dismiss, which is what it construed later on, it can. [00:18:02] Speaker 04: So why isn't that the better way to read the record, that there was an actual denial of the government's motion right then and there? [00:18:09] Speaker 01: Because based on the record, that's not how anybody read the reserving the ruling on the government's motion. [00:18:16] Speaker 01: Even defense counsel in their supplemental briefing at 238 says the court did not rule on the government's motion to dismiss. [00:18:25] Speaker 01: And so by the time the motion hearing happened on the morning of trial, the government had resolved its scheduling issues, had effectively withdrawn its motion to dismiss, and it was ready to proceed with trial. [00:18:39] Speaker 02: You heard our hypothetical back and forth with the defense counsel. [00:18:44] Speaker 02: I was a little surprised that the defense counsel's position was that if [00:18:50] Speaker 02: I understood it. [00:18:52] Speaker 02: Their position is that if the judge was to say, I'm going to set this for trial, but feel free to brief this, and morning of trial, we'll decide this motion. [00:19:06] Speaker 02: It sounded to me like she was saying that that would be reversible error, and I don't see how that would be reversible error. [00:19:12] Speaker 02: But that's not exactly what happened here, as you were just talking about. [00:19:14] Speaker 02: What happened was the judge actually said, you can't do briefing. [00:19:19] Speaker 02: But then the judge obviously didn't file the brief anyway, and it seems to me the fact that the judge said you can't do briefing is the government's biggest problem in this case, because either you could construe it as having denied the motion and having a different motion. [00:19:35] Speaker 02: What is your answer to the fact that the judge said you can't brief this? [00:19:40] Speaker 01: At one point, the judge should say no in response to the request for time to submit more briefing. [00:19:46] Speaker 01: But at another point, the judge did say, if defense counsel wants to bring another motion, we'll consider it at that time, that's fine. [00:19:53] Speaker 01: And that's ER 253. [00:19:54] Speaker 01: So . [00:19:54] Speaker 01: . [00:19:54] Speaker 01: . [00:19:55] Speaker 02: So do you just construe that as, you know, it's kind of a . [00:19:58] Speaker 02: . [00:19:58] Speaker 02: . [00:19:58] Speaker 02: the magistrate judge is sitting there and maybe is a little bit upset and doesn't understand why this is going . [00:20:03] Speaker 02: . [00:20:03] Speaker 02: . [00:20:03] Speaker 02: and so initially he's like, we're not going to do this, and then later on is, okay, we'll . [00:20:07] Speaker 02: . [00:20:07] Speaker 02: . [00:20:07] Speaker 02: I'm going to set this for trial, but we'll sort this out later. [00:20:12] Speaker 01: Correct. [00:20:13] Speaker 01: We effectively construe it as the magistrate judge granting defense counsel more time, as they asked for. [00:20:19] Speaker 01: And again, it's not an abuse of discretion. [00:20:21] Speaker 01: That's the standard on a review. [00:20:22] Speaker 02: So I see why you did it, because it helps with the problem of having actually denied the motion on the day. [00:20:29] Speaker 02: But it's just unclear, I guess, what the judge did. [00:20:35] Speaker 02: I mean, the judge didn't [00:20:38] Speaker 01: didn't explicitly say you get more you know now I've changed my mind you get more time said said something kind of different he didn't explicitly said you'll have more time but he did continue the motion hearing which effectively granted more time 11 days in which defense counsel did submit and did submit supplemental briefing but the bottom line is defense counsel could have come in [00:21:02] Speaker 03: you know, anytime within those next days, if they called the government and said, hey, we made a mistake, we wanted to take this dismissal without prejudice, that probably would have resolved it, at least until you solved the witness problem. [00:21:17] Speaker 03: I don't know what the timeline happened. [00:21:21] Speaker 03: Do you think that's correct? [00:21:21] Speaker 03: I guess I'm asking a hypothetical you don't know the answer to, but certainly that was still on the table that this could have been [00:21:29] Speaker 03: the government's position would not have been, oh no, we can't go back to the judge at that point. [00:21:35] Speaker 01: I don't believe there's anything in the record that would support that one way or the other, but based on my understanding of this case and this time period of prosecuting 1325 misdemeanors, had defense counsel, assigned defense counsel, [00:21:50] Speaker 01: returned to the government and said, we will agree to the joint motion to dismiss without prejudice, it could have been very likely that the government would say, let's set it for a status. [00:22:02] Speaker 02: Related to that, make sure I'm correct on what I think I saw on the record, which is [00:22:08] Speaker 02: I don't believe that defense counsel ever even at the morning of trial said, okay, we'll take a motion to dismiss without prejudice. [00:22:19] Speaker 02: Even assuming it was still on the table up until, let's say it's a little unclear when it was implicitly denied or withdrawn by the government, defense counsel had filed a motion and that motion was asking for dismissal with prejudice, the motion that they had filed. [00:22:37] Speaker 01: That's correct. [00:22:38] Speaker 01: Their supplemental briefing asked for dismissal with prejudice, and in that supplemental briefing, they raised the potential of prosecutorial harassment. [00:22:46] Speaker 02: So we don't know what would have happened if the morning of trial, defense counsel had shown up and said, you know what, we filed this thing that says we want with prejudice, but we're willing to take without prejudice. [00:22:59] Speaker 01: That's correct. [00:23:00] Speaker 01: It wasn't an indicator that defense counsel was willing to take dismissal without prejudice. [00:23:05] Speaker 01: In fact, they specifically asked for dismissal with prejudice. [00:23:09] Speaker 04: Counsel, can I have you switch gears for a second about the corpus delicti doctrine? [00:23:14] Speaker 04: The defendant appellant here says that the mode of entry evidence is not sufficiently reliable to support the admission at the border. [00:23:25] Speaker 04: Why do you disagree with that position? [00:23:29] Speaker 01: Well, Your Honor, this court in Hernandez held that they were not holding mode of entry was sufficient. [00:23:36] Speaker 01: And we believe in this case that we do have additional evidence, independent, sufficient evidence to corroborate Mr. Suarez's field admissions. [00:23:48] Speaker 01: This court in Garcia Villegas, I believe, held that two independent forms of evidence was sufficient. [00:23:55] Speaker 01: And in this case, on this record, we do have at least that. [00:23:59] Speaker 01: We have the observations from Officer De La Vega or Agent De La Vega who through his scope or his camera observed at 6 a.m. [00:24:08] Speaker 01: in a remote rural area of the border two individuals crawling in the brush. [00:24:14] Speaker 01: And then we have the observations of the arresting Border Patrol agent who said that the two individuals when they came upon the individuals were lying face down attempting to conceal themselves in the brush. [00:24:26] Speaker 04: And why does that evidence go to the reliability of the admissions themselves? [00:24:31] Speaker 04: I mean, I can see why that might go toward the actual crime potentially occurring, which satisfies the first prong of the test. [00:24:38] Speaker 04: But what about the admissibility side? [00:24:40] Speaker 01: The admissibility side, it goes to the gravamen of the offense, which is Mr. Seori is an alien who didn't have permission to enter the United States. [00:24:48] Speaker 01: And if he wasn't an alien or he had permission, he wouldn't take these steps that a [00:24:53] Speaker 01: person with permission or a person with lawful status to be in the United States would take to conceal themselves from border patrol agents. [00:25:02] Speaker 01: In addition, we also have the AFIL custodian's testimony that his review of government databases didn't come up with any indication that Mr. Ciordia ever applied for or received any immigration benefits. [00:25:17] Speaker 01: And again, that corroborates his admission that he [00:25:19] Speaker 01: didn't have permission to be in the United States. [00:25:22] Speaker 01: And so we believe that under the corporate select eye rule and there is sufficient independent cooperating evidence in this case. [00:25:31] Speaker 04: And so you don't need evidence on the nature of Hernandez of someone witnessing a person crossing over a fence or something more specific than that. [00:25:40] Speaker 04: You think this evidence is sufficient on its own to sustain the field admissions? [00:25:44] Speaker 01: Yes, Your Honor, we do. [00:25:47] Speaker 04: And what about there was arguments of the record that there was a muddle as to what the nature of those admissions were with whether he was being asked about his country of origin or citizenship status or other things. [00:25:59] Speaker 04: Is the record as muddled in your view as appellant contends? [00:26:05] Speaker 01: No, Your Honor, I think the record is equivocal in that the Border Patrol agent testified from his memory and paraphrased his interaction with Mr. Ciordia. [00:26:16] Speaker 01: But the core value of Mr. Ciordia's field admissions was that he wasn't a citizen, he was an alien, and he didn't have documents to enter the United States. [00:26:26] Speaker 01: And that part is clear. [00:26:30] Speaker 01: So unless the Court has any further questions, we would ask that this Court affirm. [00:26:34] Speaker 03: Thank you. [00:26:43] Speaker 00: All right, so on corpus delicti, I think the issue here is we're talking about one statement. [00:26:49] Speaker 00: In all of this court's cases, it relies pretty heavily on some sort of videotaped custodial confession that then matches with the details of how the person was arrested and then is also matched with the much shorter statements in the field. [00:27:04] Speaker 00: So this is a little bit different for that. [00:27:06] Speaker 00: And then I think I agree with Judge Sanchez, this is really a prong too. [00:27:09] Speaker 00: of Lopez Alvarez issue in the sense this is really comes down to corroborating the reliability of the statements. [00:27:17] Speaker 00: I think it does matter asking someone where are you from versus what country are you a citizen of. [00:27:22] Speaker 00: I think people do answer that differently. [00:27:24] Speaker 00: And so that murkier single statement is what takes this out of the realm of a case like Hernandez. [00:27:32] Speaker 00: I do want to point out on the dismissal issue, I think the magistrate judge very clearly denied the opportunity for supplemental briefing. [00:27:41] Speaker 00: At the morning of trial, he reiterated the problem was that she asked for briefing time, and that was not in the cards that said ER 134. [00:27:50] Speaker 02: I was just now looking at that, but he says, I'd like the opportunity to brief. [00:27:54] Speaker 02: and then he said no i'm going to set the matter for trial but then and and and he says what sort of state clerk that gives a date but then right then he says i'm continuing the motion hearing until that date so i think you could construe this as the magistrate judge just saying i'm not giving an extension of time between now and the trial that that the no is what it's not clear and but i that it's it's odd to say you say i want more opportunity brief and say [00:28:20] Speaker 02: know I'm gonna set the matter for trial but then immediately after that to say I'm continuing the motion hearing. [00:28:25] Speaker 00: Yeah, I think the transcript is a mess, to be clear. [00:28:27] Speaker 00: But I think the trial transcript, the morning of, he does say, briefing time was not in the cards. [00:28:32] Speaker 00: So I think he does clarify what his intent was then. [00:28:34] Speaker 00: He says, you can bring a motion. [00:28:36] Speaker 02: In the morning of trial, he said what? [00:28:38] Speaker 00: He said, quote, let me get it. [00:28:41] Speaker 00: The problem was that she asked for briefing time, and that was not in the cards. [00:28:45] Speaker 00: That's at ER 134. [00:28:46] Speaker 02: Right, so that was support that really went all out. [00:28:47] Speaker 02: That the no was actually, I'm not going to give you an extension. [00:28:51] Speaker 02: But that the no was not necessarily that you wouldn't have an opportunity to brief. [00:28:55] Speaker 02: He did give them, he did let them file a brief. [00:28:58] Speaker 00: He let them file their own motion to dismiss, which under Rule 48 does, you know, we file motions to dismiss all the time, and very rarely are they granted. [00:29:06] Speaker 02: But the motion to dismiss with, the motion to dismiss with prejudice [00:29:12] Speaker 02: A brief supporting that is exactly what you would say in saying why we don't want you to dismiss without prejudice. [00:29:19] Speaker 02: We want you to dismiss with prejudice. [00:29:20] Speaker 02: It's sort of the same. [00:29:22] Speaker 02: There's no difference between those, right, as far as the substance of them. [00:29:27] Speaker 00: I think there is a difference of supporting saying, yes, we want dismissal, but we want it with prejudice. [00:29:34] Speaker 00: But that said, I will remind the court that at the end of the day, our position unfortunately doesn't matter that much under Rule 48. [00:29:42] Speaker 00: Garcia Valenzuela says it doesn't matter whether they agree or disagree before trial. [00:29:47] Speaker 00: The court does not have discretion to deny based on that, unless the court has any further questions. [00:29:54] Speaker 00: Okay. [00:29:54] Speaker 03: Thank you. [00:29:54] Speaker 03: Thank you to both counsel for your arguments in the case. [00:29:58] Speaker 03: The case is now submitted.