[00:00:04] Speaker 01:
your honors, Ryan Stitt on behalf of Hector Ibarra.

[00:00:08] Speaker 01:
The court should reverse Mr. Ibarra's conviction because the district court improperly limited his ability to argue his closing or his theory of defense in closing to the jury.

[00:00:21] Speaker 01:
In the district- What did he limit him from saying?

[00:00:24] Speaker 01:
That he was tricked

[00:00:56] Speaker 01:
I argued that Mr. Mayfield tricked Elias Areola the day before, tricked Edith Howard the day of, and presented substantial evidence to the court that that was Mr. Mayfield's modus operandi.

[00:01:09] Speaker 01:
I did not argue that Mr. Ibarra's counter surveillance driving maneuvers that the government introduced were indicative of him similarly being tricked.

[00:01:21] Speaker ?:
I argued and proved that Mr.

[00:01:33] Speaker 00:
was that but your argument certainly suggested that if I understand it and I guess that's why I'm glad you're the trial counsel I read this argument it didn't seem to me to be anything short of saying he's in the same boat

[00:02:05] Speaker 01:
Well, Your Honor, it's one thing to argue that the government has not shown intent or knowledge, and it's another thing to argue that the government has not shown intent or knowledge similarly and draw the link between Mr. Ibarra being tricked similarly to Elias Areola or Edith Howard to further rebut the government's

[00:02:37] Speaker 01:
I appreciate the question Judge Mendoza.

[00:02:39] Speaker 01:
So I would have argued that the counter surveillance maneuvers that the government, if I may, big picture if we can take a step back for the evidence introduced against Mr. Ibarra by the government.

[00:02:54] Speaker 01:
The government surveilled a car in a parking lot.

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transport undocumented people, the entirety of the government's presentation and evidence against Mr. Ibarra was what he did when he got to the parking lot.

[00:03:20] Speaker 01:
He encased the parking lot, he gets into the car, he engages in counter surveillance maneuvers, and he flees from the police.

[00:03:29] Speaker 01:
The government argued that the reasonable inference from that activity was that he had agreed to smuggle undocumented people.

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I sought to rebut that inference.

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So

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And that if you have a lot of money in the car, you'd be worried you're being followed.

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You'd be worried you could be robbed.

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And we've learned that Michael Mayfield, the co-defendant, has a modus operandi of tricking people to go to the same parking lot to pick up cash.

[00:04:05] Speaker 01:
And that Mr. Ibarra's conduct is similar to someone who thought he was picking up cash, like Elias Areola, like Edith Howard,

[00:04:17] Speaker 01:
and that that rebuts this inference that the government's drawing to show that these counter surveillance maneuvers are indicative of alien smuggling.

[00:04:25] Speaker 01:
For example, in the government's response brief before this court at page 33, it addresses some of these inferences from the driving maneuvers and says they were properly excluded because they did not uniquely show that Mr. Ibarra was smuggling money.

[00:04:42] Speaker 01:
Mr. Ibarra doesn't need to show

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not the court, which weighs the contradictory evidence and inferences and drives the ultimate conclusion of the facts in the district court here.

[00:05:07] Speaker 01:
What it did was it limited argument based on the admitted evidence.

[00:05:38] Speaker 01:
In what sense, that I admitted that this was false or that I didn't?

[00:05:42] Speaker 01:
I admitted that it was false.

[00:05:43] Speaker 01:
First, I did not admit that this was false.

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I admitted that it was bad.

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And it is bad to speak plainly.

[00:05:49] Speaker 01:
It's strong evidence that the government has that it was unable to introduce because it was an illegally obtained wiretap.

[00:05:57] Speaker 01:
I argued, consistent with my brief before this court, to the district court, that the defense counsel can, as long as defense counsel

[00:06:28] Speaker 00:
suggests all of that except he put one more, if you will, helmet in it.

[00:06:35] Speaker 00:
He can argue it as long as he knows that it is truthful.

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The evidence?

[00:06:43] Speaker 00:
No, his argument.

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that isn't true.

[00:07:13] Speaker 01:
I disagree.

[00:07:14] Speaker 01:
Okay, give me the case.

[00:07:15] Speaker 01:
This court in United States versus Hernandez-Mesa, and I quote, so long as the defendant doesn't perjure himself or present evidence that he knows to be false, he's entitled to exploit weaknesses in the prosecution's case, even though he may believe himself to be guilty.

[00:07:34] Speaker ?:
No, but that doesn't say that.

[00:07:36] Speaker ?:
It does.

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That's it for me to quote.

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be false.

[00:07:48] Speaker ?:
First, I do not know Mr Ibarra's defense to be false.

[00:07:52] Speaker 01:
Second, all of the evidence that I introduced at trial, the government and district court agreed was truthful.

[00:08:01] Speaker 01:
What inferences can be drawn from

[00:08:16] Speaker 01:
Council, did you want to reserve any time for rebuttal?

[00:08:20] Speaker 01:
I would like to reserve some time for rebuttal, yes, Your Honor.

[00:08:22] Speaker 01:
All right, so we'll reserve the rest of your time.

[00:08:26] Speaker 01:
Thank you.

[00:09:29] Speaker 00:
saying is there is a waiver and therefore he needs to worry about that but I read loose which you did put in your brief but that didn't have anything to do about waiving it at the time that only had to do with if you don't present the evidence you don't get it in and so I'd apply that to this but I didn't see any waiver argument in your brief so is this an

[00:10:13] Speaker 00:
Well, with the warning he fair, I think the district court immediately, upon first blush, did not say that at all.

[00:10:21] Speaker 00:
That's absolutely – and frankly, what he said after he got through thinking about it, he diminished what he said.

[00:10:29] Speaker 00:
And that's why I was wondering what your argument would be, and that's why I read your brief so closely.

[00:10:41] Speaker 00:
those and by the end of the hearing the

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but that we also have said in our circuit that if you unreasonably limit the argument, and as we've also said, you can only prevent the defendant from arguing incorrect statements of law and a defense theory that is not supported by the evidence.

[00:12:14] Speaker 00:
really talking about.

[00:12:15] Speaker 00:
It doesn't seem to me that we're really talking

[00:12:51] Speaker 00:
broad discretion that's fine but with even broad discretion one can't do something that's counter to known law or counter to what is known to be or your discretion is abused and what we're saying is here's what the law is they can they can argue anything they want except incorrect statements of law and a defense theory that is not supported by the evidence that's the only that's the only limit

[00:13:22] Speaker 00:
allow them to do whatever they want to do.

[00:13:25] Speaker 00:
And so if the district court goes beyond that, they've abused their discretion and then a structural error.

[00:13:31] Speaker 00:
But disagree, Your Honor.

[00:13:33] Speaker 00:
Okay, tell me I'm going to interpret that any differently.

[00:13:35] Speaker 00:
Well, I'm not sure where the court has never held explicitly that those are the only reasons that courts can can limit closing argument.

[00:13:43] Speaker 00:
Well, tell me another case that says I can limit it for something else.

[00:13:47] Speaker 00:
I've looked at all of them.

[00:13:49] Speaker 00:
I looked at every one of

[00:14:23] Speaker 00:
San Francisco.

[00:14:23] Speaker 00:
That's our case law, 2019.

[00:14:26] Speaker 00:
A district court abuses its discretion if it rests its decision on other than an erroneous legal standard or clearly erroneous factual findings.

[00:15:15] Speaker 00:
make rulings all the time.

[00:16:22] Speaker 00:
of my argument here, the court said, fine, make whatever argument you want.

[00:16:26] Speaker 00:
And that could raise the risk of the government opening for rebuttal.

[00:16:30] Speaker 00:
And what the Supreme Court held in loose is that that sort of continued

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had to make the argument.

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And then there's a very real possibility that he was tricked by this particular individual.

[00:17:33] Speaker 00:
It doesn't change the outcome of the case because at the end of the day, the district court gave defense counsel the opportunity to make whatever argument he wanted and he didn't make the argument.

[00:17:43] Speaker 00:
So under Luz, this court can't

[00:18:07] Speaker 00:
I don't think Prigg does it any more than evidence either.

[00:18:11] Speaker 00:
It's all about evidence when the in the case is under loose and that have interpreted loose thereafter it's all about what evidence will be

[00:18:44] Speaker 00:
of what the actual argument would have been.

[00:18:46] Speaker 00:
It can't rule in a vacuum because we don't know what the defense counsel actually would have said.

[00:18:51] Speaker 00:
And then we don't know if the court would have allowed rebuttal argument.

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It would have turned on the nuances of what the defense's argument actually was.

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And importantly, we don't know that the government would have even

[00:19:59] Speaker ?:
argument was limited.

[00:20:00] Speaker 01:
Second, after the trial, I filed a motion for post-trial bond, and one of the grounds I argued was that the District Court would need to give Mr. Ebar a new trial, given its improper limitation on closing argument, and the District Court responded

[00:20:36] Speaker ?:
courtroom understood that my closing argument was limited.

[00:20:39] Speaker 01:
And the third reason is given the strength of the enforcefulness of the district court's comments regarding its feelings about me making this closing argument.

[00:20:50] Speaker 01:
I don't believe it was reasonable to expect me to have crossed this line to preserve it.

[00:20:56] Speaker ?:
The district court found my argument, quote, deeply troubling, quote, it cannot be tolerated in our system of justice.

[00:21:03] Speaker 01:
And aside from the proposed jury instruction, what defense counsel has done is not unethical.

[00:21:08] Speaker 01:
Right on the line, but it hasn't crossed it at this point.

[00:21:11] Speaker 01:
Asking me to cross this ethical line when the government had already raised the California Rules of Professional Conduct in its motion, the Chief District Court Judge of the Southern District is saying that I'm on the line, but yet haven't yet crossed it.

[00:21:26] Speaker 01:
To sort of expect me to go off this precipice

[00:22:05] Speaker ?:
With all due respect, Judge, I love you, but I don't agree, and that's where I am.

[00:22:11] Speaker ?:
That happens every time in the district court.

[00:22:14] Speaker 01:
Well, you know, respectfully, Your Honor, I think given the ethical comments, I can tell you personally they were chilling.

[00:22:19] Speaker 01:
I'm a court-appointed lawyer on this case.

[00:22:21] Speaker 01:
I work essentially for the district court on this case.

[00:22:24] Speaker 01:
I think that is a bridge too far.

[00:22:28] Speaker 01:
Well, I've certainly been paid by the...

[00:22:37] Speaker 01:
I think with what the quote from the district court that I find most compelling in this case, after hearing argument about the case and recognizing it was a very close case and it could result in an acquittal, the district court said, but an acquittal would be very troubling because it is, we haven't done justice.

[00:22:56] Speaker 01:
It would be essentially gaming the system and getting a result that is not warranted.

[00:23:00] Speaker 01:
That is my concern.

[00:23:02] Speaker 01:
And that concern is what animated the limitation