[00:00:03] Speaker 01:
Good morning.

[00:00:05] Speaker 03:
Good morning.

[00:00:06] Speaker 03:
May it please the court.

[00:00:07] Speaker 03:
Sonam Henderson for the appellant, James DeMaso.

[00:00:10] Speaker 03:
I'm planning to reserve three minutes for rebuttal.

[00:00:13] Speaker 03:
I'll watch my clock.

[00:00:15] Speaker 01:
OK, thank you.

[00:00:16] Speaker 03:
And I plan to start on the suppression issue.

[00:00:17] Speaker 03:
And if we have time, try to get over to voir dire as well.

[00:00:26] Speaker 03:
So the question for suppression in this case is whether the fact that DeMaso emerged from the same general property

[00:00:33] Speaker 03:
that baldonado went to with the package met the government's burden to show a particularized basis for suspecting damaso even though the officers did not know and did not try to find out how big the property was how many residential units were on the property or how many people live there

[00:00:50] Speaker 03:
and where officers, similarly, had no particularized information about DeMaso doing anything suspicious before the stop, such as seeing him actually interact with Baldonado, or even being in the same room or unit as Baldonado, or that DeMaso was seen carrying something that could have come from the package, carrying a gun, or even doing something furtive.

[00:01:10] Speaker 03:
They don't have any of that.

[00:01:13] Speaker 04:
What did they have?

[00:01:14] Speaker 04:
Let's sort of work through this.

[00:01:16] Speaker 04:
They knew the package.

[00:01:20] Speaker 04:
The rigged up package had been taken into the residence and opened.

[00:01:24] Speaker 04:
Yes.

[00:01:26] Speaker 04:
They knew because they had stopped Baldonado, and you obviously don't challenge the traffic stop of Baldonado, that Baldonado said, Baldonado had the package, but not all the fake meth that had been put in it.

[00:01:40] Speaker 03:
I'm not actually sure that they knew that, Your Honor.

[00:01:42] Speaker 04:
Well, they knew that he had one.

[00:01:45] Speaker 04:
They knew that he had one of the packages of meth, and there were originally four, were there not?

[00:01:50] Speaker 04:
They knew that at some point they knew that.

[00:01:52] Speaker 04:
Whether they knew that before the stop.

[00:01:53] Speaker 04:
Well, no, not before the stop of Boldenado, before the stop of your call.

[00:01:57] Speaker 04:
Before the stop of DiMaso.

[00:01:58] Speaker 04:
OK.

[00:01:59] Speaker 03:
So here's five minutes in between.

[00:02:00] Speaker 04:
OK, but here's what I think the record taken in the light most favorable to the government suggests, that they stopped Boldenado

[00:02:08] Speaker 04:
He tells them a story, the story he tells them, and the story he tells them includes that he delivered a package to someone in the residence, and they can reasonably infer by looking at the package, which is opened and what's there, that not all the meth is with Baldonado, or not all the fake meth is with Baldonado.

[00:02:31] Speaker 04:
So, and they know the package was opened in the building, in the residence.

[00:02:36] Speaker 04:
So, they know all that stuff.

[00:02:38] Speaker 04:
They just don't know.

[00:02:39] Speaker 04:
It's not just that they know that somebody is leaving the building after Baldonado.

[00:02:46] Speaker 04:
They know that Baldonado has told them that he's delivered something to somebody in the building.

[00:02:51] Speaker 04:
Now, put all that together.

[00:02:53] Speaker 04:
Why isn't that possible?

[00:02:55] Speaker 03:
First of all, I disagree, and I've gone through the record in my reply brief with the sites about why they did not know those things yet, because there was only about five minutes in between the two stops.

[00:03:06] Speaker 03:
And they said that they ate most of that time going back and forth just pulling Baldwin and Otto out of his car.

[00:03:11] Speaker 01:
It's the collective knowledge at the time of the stop.

[00:03:13] Speaker 03:
I understand, Your Honor.

[00:03:14] Speaker 03:
But there's still only one officer who could have that.

[00:03:17] Speaker 01:
All right.

[00:03:18] Speaker 01:
But your client had also been seen on the lawn before Baldonado was stopped, correct?

[00:03:24] Speaker 03:
They had no knowledge that that was the same person.

[00:03:27] Speaker 01:
Well, except then.

[00:03:29] Speaker 01:
they have a show up out there before.

[00:03:32] Speaker 01:
What is it?

[00:03:33] Speaker 01:
Is it Cuyo?

[00:03:35] Speaker 01:
What's the name?

[00:03:36] Speaker 01:
The Cuyo?

[00:03:38] Speaker 01:
Yeah.

[00:03:38] Speaker 01:
And then someone takes a photo of your client, and then they show that to Baldonado, and he says, yeah, that's Cuyo.

[00:03:48] Speaker 03:
I'm sorry to interrupt your honor.

[00:03:49] Speaker 03:
That's after they stop him.

[00:03:51] Speaker 03:
That can't be the cause.

[00:03:52] Speaker 03:
It can't be that they did the show up is the reason to stop Demosso.

[00:03:56] Speaker 03:
They have to have reason to stop Demosso.

[00:03:57] Speaker 01:
Okay, but it's a dead end straight, they claim.

[00:04:00] Speaker 01:
All right.

[00:04:01] Speaker 01:
It's a dead end straight, and your client is the other person that drives out.

[00:04:06] Speaker 01:
And as Judge Hurwitz said, all the things that we have to infer

[00:04:12] Speaker 01:
in the governments then they know and then pretty immediately your clients reaching for something and I guess then when they get him out he keeps putting his hand in his pocket all the

[00:04:26] Speaker 03:
Your honor, that doesn't go to the stop.

[00:04:28] Speaker 03:
Again, we're talking about what the officers knew before the stop.

[00:04:32] Speaker 04:
Let's focus again on the stuff that I talked about.

[00:04:34] Speaker 04:
Because it seems to me that we have to, at this stage on appeal, assume that they got the information.

[00:04:43] Speaker 04:
See, you're arguing what you had argued below.

[00:04:47] Speaker 04:
The district court said.

[00:04:50] Speaker 04:
The district court says there's probable cause to stop.

[00:04:54] Speaker 03:
They say there's reasonable suspicion to stop, but she makes no findings about... No, the district court goes... Doesn't the district court go on to find that there's probable cause to stop?

[00:05:02] Speaker 03:
The reasonable suspicion to stop, Your Honor.

[00:05:05] Speaker 03:
Your client.

[00:05:06] Speaker 04:
Never treats probable cause?

[00:05:08] Speaker 03:
It's probable cause to search the car after the stop.

[00:05:11] Speaker 04:
Doesn't it also make an alternative finding a probable cause?

[00:05:14] Speaker 04:
It does whatever it does.

[00:05:18] Speaker 04:
But it doesn't matter if there is probable cause, correct?

[00:05:22] Speaker 03:
Yeah.

[00:05:25] Speaker 04:
So add up those facts, because in finding reasonable, see, here's where we're missing each other, so I want to be clear on it.

[00:05:32] Speaker 04:
In finding reasonable suspicion to stop, the district court found these predicate facts that I talked about before.

[00:05:39] Speaker 03:
It did not, Your Honor.

[00:05:40] Speaker 04:
It did.

[00:05:41] Speaker 04:
The district court says when they stopped him, they had reasonable suspicion to stop him because Baldonado had told them some things.

[00:05:49] Speaker 04:
Because he left.

[00:05:51] Speaker 03:
That's not just because he left let me look at the district court's order it recites those other things You're arguing that they he shouldn't have cited them because they occurred later, but the district court said they occurred I will check that for a bottle taking your question for now in terms of so let's say he said all this okay, right first There's the uncertainty about whether he's telling the truth, right?

[00:06:13] Speaker ?:
I

[00:06:14] Speaker 03:
So, like, Baldonado has plenty of reason to lie about handing this stuff off to somebody.

[00:06:19] Speaker 03:
He could just as easily have buried it there.

[00:06:21] Speaker 03:
There's no reason to believe him.

[00:06:23] Speaker 03:
It's not like he's some credible person.

[00:06:25] Speaker 03:
He's someone caught with a large amount of math who's trying to get out of it.

[00:06:29] Speaker 03:
And then there's the uncertainty about,

[00:06:30] Speaker 03:
how many units there are in the place, whether he could even have come out of the same unit, how many people there are in the place, whether he's met up with Osso or somebody else.

[00:06:38] Speaker 03:
But let me ask you this.

[00:06:39] Speaker 01:
If the district court, I know that you argued that, I think, planting or things along those lines, if the district court had believed that the officers planted that, do you think the district court would have denied the motion to suppress?

[00:06:53] Speaker 01:
I think inherent to that, there's some credibility findings there.

[00:06:57] Speaker 01:
The district court didn't go for it.

[00:06:59] Speaker 03:
Again, Your Honor, we're talking about the stop.

[00:07:02] Speaker 03:
And all this stuff about planting, all of that is after the stop.

[00:07:08] Speaker 03:
We're talking about whether they had reasonable suspicion to stop him.

[00:07:13] Speaker 03:
When they saw the profile of the man walk out of the building shortly after Baldonado left the building, did they have reasonable suspicion?

[00:07:20] Speaker 03:
Looking at that man, they didn't know.

[00:07:23] Speaker 03:
There'd been no shadow of him.

[00:07:24] Speaker 01:
Did they know that the package had been opened Okay, so that's part of what they know because they put GPS in these and then they put something I don't know if it's the same I'm not the most drug street person and I'm not saying that to be bragging but But they said they put some clue something on is that the same as searchy?

[00:07:48] Speaker 01:
Where is that different than searchy?

[00:07:50] Speaker 03:
They wouldn't have seen any of that until after they stopped him.

[00:07:53] Speaker 03:
Sure.

[00:07:54] Speaker 03:
Sure.

[00:07:54] Speaker 04:
But I'm still not clear what your argument is.

[00:07:57] Speaker 04:
I'd read your brief as arguing that there was no probable cause to stop.

[00:08:01] Speaker 04:
Now are you arguing there was no reasonable suspicion to stop?

[00:08:04] Speaker 04:
There was no reasonable suspicion.

[00:08:05] Speaker 04:
Is that what you're arguing in your brief?

[00:08:07] Speaker 04:
I believe so, Your Honor.

[00:08:08] Speaker 04:
Okay.

[00:08:08] Speaker 04:
So let's just... Reasonable suspicion is a fairly low threshold.

[00:08:13] Speaker 03:
Yes.

[00:08:14] Speaker 04:
So just given, and I'm reading the district court's order, the district court's order isn't as precise as you might want it, but it says they stopped him, Boldenado, during the stop they learned certain things.

[00:08:27] Speaker 04:
The district court doesn't rely on the pre-trial, on the photo array identification.

[00:08:32] Speaker 04:
And then says, then they stopped your client.

[00:08:35] Speaker 04:
And based on all the things that they knew, at that point, they had reasonable suspicion to stop.

[00:08:41] Speaker 04:
So let's assume for a moment that they had reasonable suspicion.

[00:08:48] Speaker 04:
Do you then have an argument to suppress?

[00:08:51] Speaker 03:
no my argument is that they didn't have reasonable suspicions.

[00:08:53] Speaker 04:
Oh, so I understood your argument to be that they didn't have probable causes.

[00:08:57] Speaker 03:
They needed reasonable suspicions.

[00:08:59] Speaker 04:
Your argument is that they, assuming they did have reasonable suspicions, do you lose your motion to suppress?

[00:09:07] Speaker 03:
I believe so, but I don't think they have reasonable suspicion.

[00:09:10] Speaker 03:
And if I can just say.

[00:09:11] Speaker 04:
No, I understand.

[00:09:12] Speaker 04:
I want to understand your argument, because I thought your argument was they didn't have reasonable suspicion, or they didn't have probable cause, and reasonable suspicion didn't give them enough of a reason to pat down your client and find the keys and do all those things.

[00:09:27] Speaker 03:
no your honor they did not have reasonable suspicion to stop because all they have they have someone leaving a building they don't know how many buildings there are don't don't didn't didn't inspector Tracy already

[00:09:40] Speaker 03:
feel like the residence was a single-family home so he's saying that with I don't know what level of certainty but it's not remotely credible because he also says right before that that there are two front doors I've never seen a single-family residence with two front doors that are right next to each other so you're arguing now that we that we that we here should assume that he wasn't

[00:10:01] Speaker 03:
The court didn't credit the single-family home thing.

[00:10:04] Speaker 03:
So there's no factual finding about that.

[00:10:05] Speaker 03:
You don't have to go and find clear and convincing evidence.

[00:10:07] Speaker 03:
It didn't make a finding about that.

[00:10:09] Speaker 03:
The question is, did they think?

[00:10:11] Speaker 03:
And I would say, even if he thought it, he couldn't have.

[00:10:14] Speaker 03:
He must have had a lot of uncertainty about it.

[00:10:16] Speaker 03:
Because again, if you're looking at a home and you see two front doors on it, that looks like a multi-family home.

[00:10:22] Speaker 04:
So if it was a single-family home, it's not.

[00:10:24] Speaker 04:
This is hypothetical.

[00:10:26] Speaker 04:
OK.

[00:10:26] Speaker 04:
If it was a single-family home and exactly the same facts took place, would there be reasonable suspicion?

[00:10:32] Speaker 04:
I don't believe so, because we don't know.

[00:10:33] Speaker 04:
So then you don't really care whether it's a multiple-family home.

[00:10:36] Speaker 04:
I do, because I think it makes it even lower.

[00:10:37] Speaker 04:
See, I'm trying to figure out what the relevance of the

[00:10:42] Speaker 04:
multiple family home is.

[00:10:43] Speaker 04:
And I think what you've just told me, it's irrelevant.

[00:10:45] Speaker 03:
I'm not saying it's irrelevant.

[00:10:46] Speaker 03:
I'm saying that I still don't think there'd be reasonable suspicion.

[00:10:49] Speaker 03:
It is relevant in the sense that if there are three units there, then there's only a one in three chance that these guys came out of the same unit.

[00:10:56] Speaker 04:
OK, so let's assume that there's only a one in three chance for a moment that a person came out of the same unit to which a package of methamphetamine had just been delivered and opened.

[00:11:09] Speaker 04:
Is that not enough to give rise to reasonable suspicion?

[00:11:13] Speaker 04:
Which, as I understand it from the case law, is a quite low threshold.

[00:11:17] Speaker 03:
Well, you've got to keep going with your probability.

[00:11:20] Speaker 03:
Well, no.

[00:11:20] Speaker 03:
See, it doesn't have to be more than a 50% chance for reasonable suspicion.

[00:11:24] Speaker 03:
I understand, Your Honor.

[00:11:25] Speaker 03:
But it's not just one in three that came out of the suit.

[00:11:28] Speaker 04:
Because then he has to assume that each of these contain more than one person?

[00:11:32] Speaker 03:
There's no reason to assume otherwise.

[00:11:34] Speaker 03:
You have to at least take in your uncertainty about how many people are in each place.

[00:11:39] Speaker 04:
And Andy, here's my difficulty with your argument, and I want you to address it directly.

[00:11:44] Speaker 04:
And I understand you're in a hurry to get everything in, so I'll try to do it quick.

[00:11:49] Speaker 04:
What you're saying is that

[00:11:50] Speaker 04:
Officers who know that a package of methamphetamine has just been opened in an apartment, and who have reasonable reason to believe that some of it is not in the car with Mr. Baldonado, have to let everybody drive away from the building immediately thereafter without stopping them even to inquire.

[00:12:10] Speaker 04:
Yes?

[00:12:11] Speaker 04:
That's your position, isn't it?

[00:12:13] Speaker 03:
Your Honor, they could do what they usually do in cases like this.

[00:12:16] Speaker 03:
There are tons of cases like this.

[00:12:17] Speaker 03:
People are following around a hot potato package.

[00:12:19] Speaker 03:
And they don't ever just assume, well, someone was in there, so we can stop anyone who comes out of the place.

[00:12:25] Speaker 03:
They follow them around.

[00:12:26] Speaker 04:
So the answer to my question is they have to let him drive away and follow them.

[00:12:30] Speaker 03:
to let him drive away.

[00:12:30] Speaker 03:
You can follow him.

[00:12:31] Speaker 03:
You can do it.

[00:12:32] Speaker 03:
What are they going to learn by following him?

[00:12:34] Speaker 03:
He could run his plates.

[00:12:35] Speaker 01:
He could use his tail light to be out, or they don't signal.

[00:12:39] Speaker 01:
Is that what you're saying?

[00:12:41] Speaker 03:
That's what officers do all the time.

[00:12:43] Speaker 03:
Yes.

[00:12:44] Speaker 04:
Then they have to make a pretext stop.

[00:12:46] Speaker 03:
I understand.

[00:12:46] Speaker 03:
But they can run the plates and see if that gives them some information.

[00:12:50] Speaker 04:
So that can actually just stop him and make believe that he crossed the center line.

[00:12:55] Speaker 04:
Which is what they do all the time.

[00:12:57] Speaker 03:
You said it, not me.

[00:12:58] Speaker 04:
They testify to that.

[00:13:01] Speaker 04:
OK, now I understand your position.

[00:13:02] Speaker 04:
I didn't want to fight it.

[00:13:03] Speaker 03:
I'm just saying, if you've got a one in three chance, it's the same unit.

[00:13:06] Speaker 03:
I guess there are four people in each unit.

[00:13:09] Speaker 03:
You've got to multiply those together.

[00:13:11] Speaker 03:
That's one in 12.

[00:13:13] Speaker 03:
One in two chance, he's telling the truth about giving it to someone rather than just bearing it.

[00:13:17] Speaker 03:
Then you're at one in 24.

[00:13:18] Speaker 03:
Your numbers go down really quickly.

[00:13:24] Speaker 03:
I have very little time left.

[00:13:25] Speaker 03:
I just asked the court to look quickly at voir dire.

[00:13:31] Speaker 03:
There must be reasonably...

[00:13:33] Speaker 01:
Trial judge has an independent responsibility to remove prospective jurors who are going to be... Okay, but this is... You had a chance, I don't know if it was you, or if it was... Were you the trial judge?

[00:13:44] Speaker 01:
No.

[00:13:44] Speaker 01:
The trial lawyer?

[00:13:45] Speaker 01:
No.

[00:13:46] Speaker 01:
Okay.

[00:13:46] Speaker 01:
Well, whoever was the trial lawyer had a chance to ask questions, didn't ask any of those questions.

[00:13:52] Speaker 01:
The prosecutor was asking questions about experiences that they would disbelieve a law enforcement officer.

[00:13:58] Speaker 01:
And I noticed that you had two peremptory challenges left.

[00:14:03] Speaker 01:
after you accepted the jury.

[00:14:06] Speaker 01:
So do you get, does a trial lawyer get to be a potted plant there?

[00:14:11] Speaker 01:
They had?

[00:14:13] Speaker 03:
It's, it's, it's error by the trial.

[00:14:15] Speaker 03:
I mean, the trial lawyer should have done more, but it's also error by the district court, which again, under Rosales-Lopez has an independent responsibility to remove prospective jurors who won't be able to impartially follow directions.

[00:14:26] Speaker 01:
But what's the showing of that?

[00:14:27] Speaker 03:
Wadir is the only way.

[00:14:28] Speaker 01:
Showing of that here.

[00:14:29] Speaker 01:
You could have asked questions if you thought something was wrong there.

[00:14:36] Speaker 03:
I mean, the trial lawyer should have asked, but this is whether the court also erred and the judge too should have asked.

[00:14:45] Speaker 04:
Is there any evidence that a juror was on the panel who was unable to follow instructions?

[00:14:50] Speaker 04:
No, Your Honor.

[00:14:51] Speaker 04:
Is there any evidence that there was a juror on the panel who was predisposed to believe police officers?

[00:14:56] Speaker 04:
We have nowhere to get such evidence.

[00:14:57] Speaker 04:
See, and that's the difficulty with clear error review.

[00:15:00] Speaker 04:
It seems to me that you've got some basis.

[00:15:02] Speaker 04:
It's not your fault.

[00:15:04] Speaker 04:
You take the record as you get it.

[00:15:06] Speaker 04:
But we've got to have some basis for reversing a conviction.

[00:15:10] Speaker 04:
And when defense counsel at trial decides he doesn't want to have that question asked,

[00:15:19] Speaker 04:
It's therefore it's not asked.

[00:15:21] Speaker 04:
I'm not sure how we have a base.

[00:15:22] Speaker 04:
Are you going to say in every case in which defense counsel doesn't, it must be given in every case is what you're saying?

[00:15:28] Speaker 04:
Under this court's case law.

[00:15:30] Speaker 04:
Our case law doesn't say a judge clearly errors in every case by not asking this question.

[00:15:36] Speaker 03:
It doesn't say clearly errors, but your case law says that in every, in cases where law enforcement testimony is important,

[00:15:43] Speaker 03:
You have to ask the question.

[00:15:45] Speaker 03:
If requested is not part of the language of every case.

[00:15:48] Speaker 04:
If you look at you, you have a case that stands for the proposition that it is clear error when a law enforcement.

[00:15:55] Speaker 04:
Let me finish.

[00:15:56] Speaker 04:
You're over time anyway, so you're not losing any of your time.

[00:16:00] Speaker 04:
Do you have a case for the proposition that it is clear error when law enforcement personnel testify at trial?

[00:16:08] Speaker 04:
for a trial judge.

[00:16:11] Speaker 04:
Plain error.

[00:16:12] Speaker 04:
I come from state court where it's clear error, but plain error.

[00:16:15] Speaker 04:
Plain error not to ask that question absent a request from defense counsel.

[00:16:21] Speaker 03:
So Contreras-Castro sets out the principle without saying.

[00:16:24] Speaker 04:
I understand what Contreras-Castro.

[00:16:26] Speaker 04:
I'm asking, do you have a case that says that?

[00:16:29] Speaker 04:
The answer is no, I think.

[00:16:30] Speaker 03:
I understand.

[00:16:32] Speaker 03:
You're asking, is there a previous claim error case?

[00:16:35] Speaker 04:
You're reasoning from other cases.

[00:16:37] Speaker 04:
I understand your reasoning.

[00:16:38] Speaker 04:
I'm now asking a very specific question.

[00:16:41] Speaker 04:
Don't answer it before I finish it.

[00:16:44] Speaker 04:
Do you have a case that says that?

[00:16:46] Speaker 03:
I don't have it, and I don't need it.

[00:16:47] Speaker 04:
That's all I wanted to know.

[00:16:48] Speaker 03:
I don't have it, and I don't need it.

[00:16:50] Speaker 01:
I can't control either of you here.

[00:16:52] Speaker 01:
I apologize, Your Honor.

[00:16:55] Speaker 01:
We've taken you over time, but I'm going to give you two minutes for rebuttal.

[00:16:59] Speaker 01:
Thank you so much.

[00:17:06] Speaker 01:
Okay, good luck.

[00:17:09] Speaker 02:
Good morning.

[00:17:10] Speaker 02:
Ben Petersburg on behalf of the United States may please the court.

[00:17:15] Speaker 02:
We ask the court to affirm the judgment below in its entirety because the stop of Damascus vehicle was supported by reasonable suspicion.

[00:17:23] Speaker 02:
The voir dire was reasonably sufficient to ensure an impartial jury and to provide the parties with enough information

[00:17:31] Speaker 01:
Let me clarify here on that.

[00:17:33] Speaker 01:
My understanding is the court allowed both sides to ask questions if they wanted to.

[00:17:38] Speaker 02:
Yes, that's correct.

[00:17:39] Speaker 01:
All right.

[00:17:40] Speaker 01:
I was a trial judge, so when lawyers don't ask certain questions, I always had a certain reluctance to, you know, because I also was

[00:17:51] Speaker 01:
trial lawyer and I you know there's a feeling like your honor if you're gonna try my case please don't lose it for me so apparently what your friend on the other side says is that the court should have affirmatively balanced out maybe what the prosecutor was asking at the time are are you familiar with any cases on that

[00:18:15] Speaker 02:
I am not.

[00:18:15] Speaker 02:
I couldn't find any case that reversed for the failure to ask this sort of law enforcement bias question without a request.

[00:18:22] Speaker 01:
So what were the questions about law enforcement that were asked?

[00:18:27] Speaker 02:
He asked mostly by the government during the void year.

[00:18:31] Speaker 02:
They asked, first of all, whether any of the potential jurors were acquainted or knew any of the witnesses, which included mostly agents.

[00:18:38] Speaker 02:
And some jurors did answer in the affirmative, and there were some follow-up questions about how you would handle their testimony, if you could vote to acquit, if you did not believe the law enforcement testimony.

[00:18:54] Speaker 02:
The court also did ask a question in Boisdier.

[00:19:00] Speaker 02:
There was sort of a more general question about whether anyone on the panel, there was any reason why they could be not be, they could not be fair or impartial in the case.

[00:19:07] Speaker 02:
And that's at 8 ER 1522.

[00:19:11] Speaker 02:
But I think this absence of the request from the parties is telling here, especially in the plain error context.

[00:19:17] Speaker 02:
It was not clear and obvious that this was necessary, that this was needed in order to

[00:19:21] Speaker 02:
have an impartial jury in order for these parties to exercise their peremptories and their challenges for cause.

[00:19:28] Speaker 04:
We go back to the traffic stop.

[00:19:30] Speaker 04:
Sure.

[00:19:31] Speaker 04:
I just want to make sure that I understand the facts correctly.

[00:19:35] Speaker 04:
And I've re-read the district court's order and it's not entirely specific about when things occurred during the stop.

[00:19:44] Speaker 04:
So what did the officers know at the moment that they stopped DeMasso?

[00:19:50] Speaker 04:
I mean, I know what they knew about the package.

[00:19:53] Speaker 04:
They knew that the package had gone into the building, had been opened, and had stopped Baldonado.

[00:19:59] Speaker 04:
Tell me what additional facts they knew from the stop of Baldonado at the time that they stopped DeMaso.

[00:20:06] Speaker 02:
A couple of the agents testified in general in these package delivery cases that there's, in their experience, there's an expectation that the person transporting the package is going to deliver it to another person.

[00:20:17] Speaker 02:
You know, Jeffrey Baldonado's name was on the package, and usually the people who are receiving drugs in the mail don't put their own names on it.

[00:20:24] Speaker 02:
So there was an expectation by the agents that there would be at least another person involved.

[00:20:29] Speaker 01:
Did they say that?

[00:20:30] Speaker 02:
Yes.

[00:20:31] Speaker 01:
So we want to know what the testimony was.

[00:20:34] Speaker 02:
Sure.

[00:20:36] Speaker 02:
That's at 6 ER, 1230 and 1335.

[00:20:38] Speaker 04:
They knew the normal course was to deliver it to someone else.

[00:20:42] Speaker 02:
Yes.

[00:20:42] Speaker 02:
And so there was an expectation at the time that there was likely to be another person involved.

[00:20:49] Speaker 01:
Why did they go to that location?

[00:20:51] Speaker 02:
They had no reason to know that that location, well, they went there because that's where Baldonado took the package eventually.

[00:20:56] Speaker 02:
That was not the address on the package.

[00:20:59] Speaker 01:
Does it have to do with the GPS?

[00:21:00] Speaker 01:
Is that why they knew that?

[00:21:01] Speaker 01:
Yes, I'm sorry, Your Honor.

[00:21:02] Speaker 01:
So tell us what the officers knew, why they were there, before they stopped DeMossum.

[00:21:08] Speaker 02:
Sure.

[00:21:09] Speaker 02:
So they had intercepted this package addressed at Balton Auto.

[00:21:11] Speaker 02:
It contained about 1800 grams of methamphetamine.

[00:21:14] Speaker 02:
They replaced the methamphetamine with sham for pouches.

[00:21:17] Speaker 02:
They wired it up with a GPS tracking device so they could see where it went and a breacher, which would emit a radio signal as soon as it was exposed to light.

[00:21:25] Speaker 02:
So they would know almost immediately as soon as that package was opened.

[00:21:29] Speaker 04:
And they stopped holding an auto coming out.

[00:21:32] Speaker 02:
They did after the breacher had alerted.

[00:21:33] Speaker 04:
Now, here's this is where your friend is focusing.

[00:21:37] Speaker 04:
So I just want to

[00:21:38] Speaker 04:
And then at some subsequent point, they stopped DeMaso.

[00:21:41] Speaker 02:
Yes, within, I think, a few minutes.

[00:21:43] Speaker 04:
Within a few minutes.

[00:21:44] Speaker 04:
What did they learn that they didn't know before?

[00:21:48] Speaker 04:
You've told me what they knew before.

[00:21:50] Speaker 04:
in those few minutes.

[00:21:51] Speaker 02:
Well, just before that, Inspector Tracy had driven up to the front of this residence.

[00:21:58] Speaker 02:
He described it in his testimony as a single-family residence, a one-story concrete structure.

[00:22:04] Speaker 02:
There is a photo in the record at 5 ER 1001.

[00:22:08] Speaker 02:
It's not a complete photo of the structure, unfortunately, but it does show a single-story concrete structure of modest size that is consistent with the idea that this could be a single-family residence.

[00:22:21] Speaker 02:
And Inspector Tracy, that was his testimony.

[00:22:22] Speaker 02:
He had a good faith, reasonable belief this was a single-family home.

[00:22:28] Speaker 01:
We also know as soon as Baldonado was pulled over by Inspector Tracy, who... Tracy say before Baldonado was stopped that there's another guy standing out front or that there's people out front?

[00:22:41] Speaker 02:
He testified that he saw a person later identified as James DiMasso standing out front of that structure.

[00:22:47] Speaker 04:
So all he knows is that he didn't know it was DiMasso when he stopped DiMasso.

[00:22:51] Speaker 01:
But does he tell the officers that initiate the stop on Baldonado that there was someone else out front?

[00:22:57] Speaker 02:
I don't know if there's testimony to that in the record drawer.

[00:23:00] Speaker 02:
I don't think so.

[00:23:02] Speaker 02:
There is testimony that it was Homeland Security and the postal inspectors working together.

[00:23:07] Speaker 04:
There were about a dozen agents set up in very- Yeah, and we can use their collective knowledge, I think, but I'm still- It's not your fault.

[00:23:15] Speaker 04:
It's ours.

[00:23:16] Speaker 04:
We keep distracting you.

[00:23:17] Speaker 04:
Tell me what they learned after they stopped Boltonado before they stopped Damaso.

[00:23:23] Speaker 02:
So Inspector Tracy is partnered up with Erwin Faharin.

[00:23:26] Speaker 02:
He's a Homeland Security Task Force officer.

[00:23:30] Speaker 02:
They stopped Baldonado at the first cross street off of Chalan de Gas.

[00:23:36] Speaker 02:
And there's testimony that they pulled Baldonado out of the car pretty quickly.

[00:23:39] Speaker 02:
And Agent Fahren testifies at 3ER-505 that immediately he does a cursory check of the car, that Inspector Tracy grabs Balton Auto, he does a cursory check of the vehicle, he sees the Balton Auto package sitting on the front seat.

[00:23:55] Speaker 02:
Why did they pull him out of the car?

[00:23:58] Speaker 01:
Did they say he was, like, wrestling around?

[00:24:02] Speaker 02:
I think there's actually testimony that he got out of it, that he opened the door and stepped outside the car.

[00:24:07] Speaker 04:
So they see the package, they see this package.

[00:24:09] Speaker 02:
So, Bertwin Faharin, he sees the package.

[00:24:11] Speaker 02:
He says he does a cursory check, he opens it, he sees there's one package of shame.

[00:24:15] Speaker 04:
Okay, so does the record establish that he did that before DeMaso was stopped?

[00:24:20] Speaker 02:
I think, yes, Your Honor, because he says he does it almost immediately after Faldonado.

[00:24:24] Speaker 04:
Alright, so that's one thing that occurs.

[00:24:26] Speaker 04:
What else occurs before DeMaso is stopped?

[00:24:30] Speaker 04:
Well, it's subject to some dispute, but... Taking the record in the light most favorable to the government, and then to test, based on the record, I'm not going to make up facts.

[00:24:39] Speaker 02:
Yes, Your Honor.

[00:24:40] Speaker 02:
Within a couple of minutes, Baldonado is put into the backseat of Inspector Tracy's government pickup truck, and he's, he's mirandized and starts making statements.

[00:24:49] Speaker 02:
And he says, I gave, I, I brought this package to give to someone he called Kuya.

[00:24:55] Speaker 04:
Okay.

[00:24:55] Speaker 04:
Do we know whether or not DeMaso's car is stopped before that or after that?

[00:25:02] Speaker 02:
I think it's after, and there is some testimony from- Tell me what testimony supports it.

[00:25:07] Speaker 02:
There's some testimony from agent, from Inspector Tracy that

[00:25:12] Speaker 02:
I've had it in my notes, and I'm sorry.

[00:25:15] Speaker 02:
While he was interviewing Baldonado about Kuya, he saw the investigators stop the other car, which ended up being Demasi.

[00:25:22] Speaker 04:
So while he was interviewing him about Kuya, and the Kuya reference had been that I delivered it to my Kuya.

[00:25:30] Speaker 02:
Yes.

[00:25:30] Speaker 02:
That's a 2ER 270.

[00:25:32] Speaker 02:
That's Inspector Tracy's testimony.

[00:25:34] Speaker 04:
All right.

[00:25:34] Speaker 04:
So what else did they know before they stopped Demasi?

[00:25:38] Speaker 04:
that they learned after stopping Baldonado.

[00:25:41] Speaker 04:
I knew they knew lots of other things.

[00:25:43] Speaker 02:
But he said a lot more later, I think.

[00:25:46] Speaker 02:
But he says, I gave it to Baldonado.

[00:25:48] Speaker 02:
Baldonado says Damaso opened the package.

[00:25:53] Speaker 02:
We can infer that he saw the tracking devices inside of it and panicked.

[00:25:58] Speaker 02:
Baldonado says Damaso gave him back the package and told him to get rid of it.

[00:26:02] Speaker 04:
Did he, does he, does he say that to the officers before they stopped DeMaso or after they stopped DeMaso?

[00:26:10] Speaker 02:
It's, I think it would be hard to pinpoint that exactly.

[00:26:14] Speaker 02:
The only testimony we have from Tracy that I could find said, you know, he saw them stopping DeMaso, the other agents, while he was talking to Baldonado about Kuya.

[00:26:24] Speaker 04:
Okay, so let me try to make your friend's argument for him.

[00:26:27] Speaker ?:
Sure.

[00:26:28] Speaker 04:
maybe he'll discount it, he'll disavow it when he stands up.

[00:26:33] Speaker 04:
He says, all you know at this point is that a package has gone into a house, let's assume single-family residence, because he says it doesn't make any difference, where there may be more than one person inside, and you've stopped this guy who has not the entire contents of the package, and he says he's delivered it to his brother.

[00:26:54] Speaker 04:
Is that, let's assume those are the only facts you know at that point.

[00:26:59] Speaker 04:
Does that give you eyes to reasonable suspicion to stop the next person who comes out of the house?

[00:27:04] Speaker 02:
I think it does.

[00:27:05] Speaker 02:
I think there's a logical connection between DiMaso now and the suspected criminal activity.

[00:27:11] Speaker 02:
You know, we're dealing with it.

[00:27:12] Speaker 04:
Just because he's left the house.

[00:27:14] Speaker 02:
Shortly after this package was open.

[00:27:16] Speaker 02:
Shortly after it was open.

[00:27:17] Speaker 02:
Yes.

[00:27:18] Speaker 02:
Yes, Your Honor.

[00:27:18] Speaker 02:
And knowing that Officer Faharin had seen there was sham that was still missing.

[00:27:22] Speaker 02:
There were still three packages of sham outstanding.

[00:27:24] Speaker 02:
He saw one inside the package.

[00:27:26] Speaker 02:
Right.

[00:27:26] Speaker 04:
He knows that, he knows that Boldenado doesn't have all the contents of the package.

[00:27:31] Speaker 04:
And he knows that before DeMaso leaves the house.

[00:27:34] Speaker 02:
Yes, Your Honor.

[00:27:35] Speaker 02:
And I, so I think that's a reason, that's, I think that's reasonable suspicion based on the totality of the circumstances.

[00:27:40] Speaker 01:
Well, wasn't there also some, I don't want to hear

[00:27:44] Speaker 01:
some testimony about there's one way in and one way out so it wasn't a situation where someone could just be innocently that there was a strong inference I guess that that person had come from the house yes sir I think there's clear testimony on that point that it is a dead-end road one way in one way out there's testimony that

[00:28:09] Speaker 02:
Other agents who were conducting surveillance radioed at around 10, 15, indicating they'd seen another male leave the residence in a silver or gray SUV.

[00:28:21] Speaker 02:
And that was the SUV that the demonstrator was driving.

[00:28:24] Speaker 02:
We have testimony from

[00:28:27] Speaker 02:
Erfel Matanguihan.

[00:28:28] Speaker 02:
He is a HSI special agent.

[00:28:31] Speaker 02:
And he testifies that he heard that radio chatter, that they saw the SUV coming down the road, and that's the SUV that they stopped.

[00:28:40] Speaker 02:
So I don't think there's any indication that they pulled over the wrong car, if that's what... And I don't... I take it your friend isn't really arguing.

[00:28:47] Speaker 04:
The car didn't come out of the house.

[00:28:50] Speaker 04:
I don't... His argument is they don't know that the person in the car had anything to do with the crime.

[00:28:55] Speaker 02:
Right.

[00:28:56] Speaker 02:
And we're dealing with reasonable suspicion that the agents are not required to eliminate all possible innocent explanations for a person's conduct before conducting this brief investigatory stop.

[00:29:12] Speaker 04:
I know you made an inevitable discovery argument to the district court.

[00:29:17] Speaker 04:
I think you did.

[00:29:19] Speaker 04:
Am I right?

[00:29:20] Speaker 02:
I would have to go back to the record.

[00:29:21] Speaker 02:
Double check, Your Honor.

[00:29:22] Speaker 02:
I'm sorry, I wasn't.

[00:29:22] Speaker 04:
OK.

[00:29:23] Speaker 04:
Well, I'm interested in this.

[00:29:25] Speaker 04:
We know that at some point, and let's assume the photo identification is okay, and that's a contested issue in this case, but let's assume the photo identification is okay.

[00:29:38] Speaker 04:
At that point having, well, I guess his argument is it all arises from the illegal stop.

[00:29:45] Speaker 04:
Is there any argument that they would have been able to stop Damaso at some later point anyway?

[00:29:54] Speaker 02:
I mean, I think we would have to speculate a little bit about whether the court has to do that.

[00:29:58] Speaker 04:
Okay.

[00:29:58] Speaker 04:
And so the fact that he has anything on his hands doesn't really have anything to do with... Not for purposes of the traffic stop.

[00:30:05] Speaker 04:
Not for purposes of the traffic stop.

[00:30:07] Speaker 02:
Out of the vehicle.

[00:30:08] Speaker 02:
Okay.

[00:30:08] Speaker 02:
That's right.

[00:30:10] Speaker 02:
So we would ask the court to affirm the district court's denial of... Well, did you understand

[00:30:16] Speaker 01:
your friend's argument to be that there wasn't probable cause or that, I mean, on his opening argument, he said, I'm just arguing reasonable suspicion.

[00:30:29] Speaker 01:
And if there's reasonable suspicion, if this court finds hypothetically that there was reasonable suspicion, then he concedes that he loses, that the rest falls into place.

[00:30:38] Speaker 01:
Was that what you understood his argument to be in the brief?

[00:30:41] Speaker 02:
Yes, Your Honor.

[00:30:42] Speaker 02:
My understanding was that the challenge was to... Just the reasonable suspicion.

[00:30:45] Speaker 04:
It's probably my mistake for trying then to figure out whether it was probable cause.

[00:30:50] Speaker 04:
So that's the only dispute.

[00:30:52] Speaker 04:
If there's not reasonable suspicion, you lose.

[00:30:55] Speaker 04:
Correct.

[00:30:56] Speaker 04:
And if there is reasonable suspicion, you win.

[00:30:58] Speaker 02:
Yes, Your Honor.

[00:30:59] Speaker 01:
That's the way I understand it.

[00:31:01] Speaker 01:
Any additional questions?

[00:31:03] Speaker 01:
No, thank you.

[00:31:04] Speaker 01:
We don't have any additional questions.

[00:31:04] Speaker 01:
You're free to use the balance of your time or you can...

[00:31:08] Speaker 02:
I have just a little bit of time remaining, but if the court doesn't have any questions, I will just repeat that we would do ask that the court affirm the judgment below in its entirety.

[00:31:16] Speaker 02:
Thank you very much.

[00:31:24] Speaker 03:
Thank you, Your Honors.

[00:31:26] Speaker 03:
I'm going to try to move quickly here.

[00:31:28] Speaker 03:
I've heard a couple arguments about, in terms of what you're just really quickly, the government's saying that on plain error it seems relevant that they didn't ask.

[00:31:37] Speaker 03:
The whole point of plain error is that they didn't ask.

[00:31:40] Speaker 03:
You wouldn't be on plain error if he'd asked.

[00:31:42] Speaker 03:
And what the government is trying to do is backdoor argue waiver.

[00:31:45] Speaker 03:
like an intentional relinquishment of a known right.

[00:31:48] Speaker 03:
And there is no proof of that.

[00:31:49] Speaker 03:
The government did not put on any proof of that.

[00:31:52] Speaker 03:
That would be their burden.

[00:31:53] Speaker 03:
They didn't do it.

[00:31:54] Speaker 03:
So you can't just assume, well, he meant to not do it.

[00:31:57] Speaker 03:
That is waiver.

[00:31:58] Speaker 03:
They haven't made that showing at all.

[00:32:00] Speaker 03:
They haven't even made that argument.

[00:32:02] Speaker 03:
In terms of suppression,

[00:32:03] Speaker 03:
Your Honor, your question, I'm sorry, Judge Hurwitz, your question about what the order said.

[00:32:10] Speaker 03:
The order talks about an ER 7576.

[00:32:12] Speaker 03:
It says what the officers learned during the stop of Baldonado.

[00:32:18] Speaker 04:
That's why I was asking questions of your friend, because the order is not specific about when they learned it.

[00:32:23] Speaker 04:
So it's not, it's not.

[00:32:24] Speaker 03:
Tell me what the record.

[00:32:25] Speaker 03:
No finding.

[00:32:26] Speaker 03:
that there was.

[00:32:27] Speaker 03:
And then the record is, well, first of all, this idea that there's an expectation that it would be broken up at 1230.

[00:32:36] Speaker 03:
I urge you to look at ER 1230, 1232.

[00:32:39] Speaker 03:
There's no expectation.

[00:32:41] Speaker 03:
He says, sometimes it happens.

[00:32:43] Speaker 03:
It could happen.

[00:32:44] Speaker 03:
It's not, you know, it's not that kind of force that the government's describing it as.

[00:32:51] Speaker 03:
And, sorry, in terms of,

[00:32:59] Speaker 03:
In terms of what they knew, just getting back to the single-family home, I also ask you to look at that picture that the government referred to you at ER 1001.

[00:33:08] Speaker 03:
That is half a house or less than half a house.

[00:33:12] Speaker 03:
It's some portion of a house.

[00:33:13] Speaker 03:
You can't look at that and say, oh, well, that's definitely a single-family house because it only shows a part of the structure very clearly.

[00:33:20] Speaker 03:
In terms of the front gate, that's the front gate to the property.

[00:33:25] Speaker 03:
There's one way in and out of the larger property.

[00:33:28] Speaker 03:
but we know there are at least two exterior doors on the front and another exterior door in the rear.

[00:33:34] Speaker 03:
And just in terms of people leaving, it's not such a late hour to make or such an isolated place to make it suspicious that he's leaving.

[00:33:43] Speaker 03:
Remember, they stopped two other cars right after this.

[00:33:47] Speaker 03:
This isn't like a laser-focused thing.

[00:33:50] Speaker 03:
They're stopping everyone in sight.

[00:33:52] Speaker 03:
It's really a checkpoint, which is not allowed.

[00:33:54] Speaker 03:
And they stopped two other cars right afterwards.

[00:33:56] Speaker 03:
So there are at least three people abroad on this.

[00:33:59] Speaker 03:
Supposedly isolated world dead-end Street at this hour and two of them.

[00:34:03] Speaker 03:
We know had nothing to do with this and actually mr. Damaso They didn't find what they thought they were going to find on him, right?

[00:34:10] Speaker 03:
So they're there there, you know, they didn't find anything from the package on him So they're they're kind of taking an outershot approach sure you can use that because if they found it I wouldn't let them use it

[00:34:20] Speaker 03:
Well, no, no, but I mean, they didn't, yeah, I'm just saying that this is a scattershot approach they're taking.

[00:34:26] Speaker 03:
This isn't, you know, oh, there could only be one person here.

[00:34:30] Speaker 03:
There's no reason to assume only two people lived on the property.

[00:34:33] Speaker 03:
It's just as likely that 20 people lived on the property.

[00:34:36] Speaker 03:
It was the government's burden.

[00:34:37] Speaker 03:
And that's just the last point.

[00:34:39] Speaker 03:
This is the Nova review.

[00:34:40] Speaker 03:
I don't know that you look at this in the lightmost favor of the government.

[00:34:43] Speaker 03:
This isn't a Rule 29 motion.

[00:34:45] Speaker 04:
Well, we don't retry the facts.

[00:34:47] Speaker 04:
Sorry?

[00:34:48] Speaker 04:
We don't retry the facts.

[00:34:50] Speaker 03:
You would review the court's factual findings for clear error.

[00:34:55] Speaker 03:
As I say, on ER 7576, there are no factual findings about these things, about the particular sequence in which you learned them.

[00:35:03] Speaker 03:
And then you're not taking the evidence in the light most favorable to the government after that.

[00:35:08] Speaker 03:
You are looking at it anew.

[00:35:09] Speaker 03:
It is de novo review.

[00:35:11] Speaker 01:
All right.

[00:35:12] Speaker 01:
We've given you extra time.

[00:35:14] Speaker 01:
I so appreciate it.

[00:35:15] Speaker 01:
Thank you very much.

[00:35:16] Speaker 01:
Thank you both for your arguments.

[00:35:17] Speaker 01:
This matter will stand submitted.