[00:00:17] Speaker 05:
out with the Brady material or what I contend is Brady material that relates to the I'm 1015 Facebook group.

[00:00:27] Speaker ?:
Now, we made a specific request for that.

[00:00:29] Speaker ?:
We showed the background of this Facebook group, the history of its racist, violent postings.

[00:00:39] Speaker 05:
And we know from the court's comments when I renewed my objection right

[00:00:51] Speaker 01:
What material did you request?

[00:00:54] Speaker 05:
I requested all the Henthorne material relating to the participation by the agents in the Facebook group.

[00:01:02] Speaker 01:
So the Henthorne material, the Henthorne case, relates to personnel files.

[00:01:07] Speaker 01:
So you were requesting any information in these agents' personnel files that related to these Facebook groups?

[00:01:22] Speaker 05:
they had relating to the participation in this group.

[00:01:26] Speaker 01:
Okay, so any information in the government's position showing the agent's relationship to this Facebook group?

[00:01:34] Speaker 01:
Correct, correct.

[00:01:36] Speaker 02:
And did you, was it limited to that or were you asking them to go get more information about the Facebook group as to these officers?

[00:01:47] Speaker 05:
argument in my request under Brady was that the government had a duty to find out what information the government had and any government agency had regarding the agent's participation in the group.

[00:01:58] Speaker 02:
So I'm just trying to understand what that means, though.

[00:02:00] Speaker 02:
So maybe there was already a Manila folder somewhere with information about this in the prosecutor's office, and you wanted them to look at it.

[00:02:10] Speaker 02:
Or maybe you wanted them to go online and do searches.

[00:02:15] Speaker 02:
Which or both?

[00:02:16] Speaker 05:
Well, I think that I wanted them to do a vigorous Henthorne review in order to tell the agency, and also to ask the agents, I think they had

[00:02:34] Speaker 05:
in any way I remember of this group.

[00:02:38] Speaker 03:
I'm sorry.

[00:02:39] Speaker 03:
I guess my reading of the AUSA's declaration, which admittedly is ambiguous as to what the source of the information was, was that that's exactly what they did.

[00:02:49] Speaker 03:
They asked the agents what their participation was in the group.

[00:02:54] Speaker 03:
And the agent said, we neither commented, posted, or liked, I think is the phrasing that they used, on anything on the page.

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

[00:03:11] Speaker 05:
To me, that's essential braiding material that they were members of this group.

[00:03:17] Speaker ?:
The Davis v. Alaska, all the Supreme Court and Ninth Circuit cases said you have a vigorous right to cross-examine witnesses about their bias.

[00:03:27] Speaker 05:
And I think that just membership in the group, that would have been a subject for cross-examination.

[00:03:34] Speaker 05:
How did they respond when they were asked about how long they were members?

[00:03:42] Speaker ?:
members on the page.

[00:03:43] Speaker ?:
And so we know that this was something the Border Patrol agents were trying to hide within hours after it became public.

[00:03:57] Speaker ?:
there were, according to the articles I cited, there was mass deletions of posts and membership.

[00:04:03] Speaker 05:
And so the mere fact that they were members of this group would have been a subject for cross-examination, and the fact finder would be able to evaluate how their explanation is.

[00:04:17] Speaker 01:
If they... Though, if I understand correctly, assuming for argument's sake that the sealed material

[00:04:35] Speaker 01:
have been disclosed.

[00:04:36] Speaker 01:
Is that correct?

[00:04:37] Speaker 05:
That's correct.

[00:04:38] Speaker 05:
We know that the Facebook group was replete with uh, viling.

[00:04:42] Speaker 01:
Just a follow up question if I could.

[00:04:45] Speaker 01:
Um, but to follow up on Judge Freeland's question, you're not, if I understand correctly, you're not saying that the government erred by not doing its own, launching its own discovery of the um, of Facebook if it didn't have this information in the file.

[00:05:01] Speaker 01:
Is that correct?

[00:05:02] Speaker 05:
Well, that's not completely

[00:05:08] Speaker 05:
Now, if it's just the agents, you know, if the whole material... No, no, wait.

[00:05:12] Speaker 01:
I mean, there's a duty for the government to search all of the government files, but where are you saying there's a duty to go?

[00:05:38] Speaker 05:
information when they stopped looking for information, but this was an ongoing thing that the government, I think right up until trial, would have had to see what the further investigations revealed.

[00:05:51] Speaker 02:
And so that sounds like an answer that you think there was information already in the government's

[00:06:12] Speaker 05:
know from the public reporting on it.

[00:06:15] Speaker 02:
And what makes you think they didn't do that search?

[00:06:19] Speaker 05:
Well, I don't know because I wasn't providing any of the information.

[00:06:24] Speaker 05:
But if I can get back to the central point, if they're members of the group, that alone is Brady and that was not turned over.

[00:06:39] Speaker 01:
But let's just assume, for argument's sake, that they were members, that that would be prejudicial as material, and that there's a reasonable probability that the case would have been different.

[00:06:51] Speaker 01:
Can you address that?

[00:06:52] Speaker 05:
Yeah, certainly.

[00:06:54] Speaker 05:
To me, this is the sin qua non of reversible error, when it's the only evidence as to witnesses.

[00:07:01] Speaker 05:
In a video.

[00:07:03] Speaker 05:
In a video.

[00:07:04] Speaker 05:
In a video, but the video doesn't really move the ball much, either way, in my opinion.

[00:07:12] Speaker 05:
Absolutely right.

[00:07:13] Speaker 05:
The video.

[00:07:14] Speaker ?:
Um, but in particularly, Agent, uh, Cytles, uh, the whole case rests on his testimony.

[00:07:21] Speaker 02:
And so, um, you know, you have cases like, um, I cited the- But also you have the defendant in custody that day.

[00:07:31] Speaker 02:
So what is the scenario that sort of leads to him being in custody, but doesn't lead to this being the violation that he was charged with?

[00:07:42] Speaker 05:
Because the evidence on the essential elements was severely lacking.

[00:07:46] Speaker 05:
If I could shift for a moment to the identification, which this court has noted is the weakest type of evidence in court identification of a defendant seated at a council table.

[00:07:56] Speaker 05:
But the government simply has it wrong in their brief at page 16 where they say the agent identified the individual in the photo reported initial.

[00:08:10] Speaker 05:
the photo in the report, and when asked on cross-examination, you know, where does this identification come from, since you can't remember anything else about that day?

[00:08:20] Speaker 05:
Well, it turns out he went to the station and looked at some photographs online, and then that's what he's identifying.

[00:08:28] Speaker 05:
And so that wasn't introduced into evidence.

[00:08:30] Speaker 05:
We don't know if it's the same person.

[00:08:32] Speaker 05:
When it was taken, he admitted on cross-examination that it wasn't taken by him.

[00:08:47] Speaker 02:
to link him to the person who was arrested.

[00:08:50] Speaker 02:
Tell us what other elements you think really turned on this testimony and how it could be that some other story would have been the explanation.

[00:08:58] Speaker 05:
Well, the other testimony that's essential is alienage and entry.

[00:09:04] Speaker ?:
And, you know, the evidence was very

[00:09:11] Speaker ?:
alleged statement in the field.

[00:09:14] Speaker ?:
And, you know, there was no questioning whatsoever about the mode of entry, when there was an entry, if there was an entry, how there was an entry.

[00:09:24] Speaker 05:
The evidence was there were two fences, one

[00:09:37] Speaker 02:
be that this officer was so racist that he went and picked up someone actually in Mexico and then brought him to the station and said you'd committed this crime or I mean what is the scenario that causes everything to turn on the credibility?

[00:09:51] Speaker 05:
What causes the credibility is you know not directly shading about what he remembered that day and the certainty of

[00:10:06] Speaker 05:
same person i mean that's the fact finder should be able to give weight about the certainty of his identification when it's not based on any independent recollection of the day of the arrest it's based on some supposed look of a photo in the state

[00:10:30] Speaker 05:
was Mr. Peralta.

[00:10:32] Speaker 05:
Did he really ask him those two questions?

[00:10:34] Speaker 05:
He's a non-native Spanish speaker.

[00:10:36] Speaker 05:
He took three months of Spanish in the academy.

[00:10:39] Speaker 05:
He says he asked these questions all the time.

[00:10:41] Speaker 05:
He didn't remember who he asked the question to first.

[00:10:56] Speaker 02:
because it was like in a different capacity or or what do we make of that well yeah we make it's a different capacity also the

[00:11:14] Speaker 02:
that this fact finder thought that membership alone wasn't material in this fact finder's mind.

[00:11:20] Speaker 02:
It's a weird combination of the fact finder being the fact finder and the judge.

[00:11:23] Speaker 05:
Right.

[00:11:24] Speaker 05:
Well, I think that on a rematch, assuming that it's found to be the judge got it wrong, that it is relevant, then the judge is going to have the ability to set that aside and independently hear the evidence and determine whether the witness is

[00:11:49] Speaker 03:
of membership is not material.

[00:11:52] Speaker 03:
Do you lose this argument?

[00:11:55] Speaker 03:
They made a fact of membership.

[00:11:57] Speaker ?:
Well, I don't know, not having seen the material, when was the inquiry made?

[00:12:02] Speaker 05:
Did they do the follow-up request for information based on these thousands of investigations on the Facebook group?

[00:12:13] Speaker 05:
So I don't concede that

[00:12:17] Speaker 01:
material doesn't show anything but the fact of mere membership.

[00:12:23] Speaker 01:
Could you respond?

[00:12:24] Speaker 05:
Yeah, if it shows mere membership, then that returns my argument that that's essential cross-examination under Brady and Giglio, because how long was a person a member?

[00:12:35] Speaker 05:
They say, you know, I've seen these in other cases, so I have a sense that maybe it said, you know, I didn't like or post.

[00:12:42] Speaker 05:
Well, how long were you a member?

[00:12:55] Speaker 05:
duty to do.

[00:12:57] Speaker 04:
Good morning may it please the court Benjamin Hawley for the United States.

[00:13:37] Speaker 04:
determination, found that nothing about this was material.

[00:13:41] Speaker 04:
It would not have changed the result.

[00:13:44] Speaker 03:
And even if... Can we consider that as a matter of law?

[00:13:48] Speaker 03:
I guess that's my follow-up on Judge Friedland's question.

[00:13:50] Speaker 03:
Can we consider the fact that she was both as a matter of law?

[00:13:55] Speaker 04:
I think so.

[00:13:56] Speaker 04:
So I do not have a case that says that.

[00:13:58] Speaker 04:
I think so because the ultimate determination on both the legal and factual question is materiality.

[00:14:04] Speaker 04:
So this isn't a situation, for example, where we have four or

[00:14:15] Speaker 04:
Here, the, it's a materiality question both ways, so I think the court could.

[00:14:20] Speaker 04:
But again, even if the court doesn't necessarily need to address that issue or determine that because of the prejudicial or lack of prejudice, and even if the court were to ultimately determine this should have been

[00:14:41] Speaker 04:
That's what was done in the Bernal-Sanchez case is not to completely reverse order a new trial and kind of start from step one.

[00:14:48] Speaker 02:
What would the alienage evidence have been if this officer was not trusted?

[00:15:09] Speaker 04:
rocks so that those circumstances indicate that he's not supposed to be here.

[00:15:15] Speaker 04:
That's why he's so near the fence, why he's running north, why he's trying to hide.

[00:15:18] Speaker 02:
But all of that also comes from the officer's testimony.

[00:15:32] Speaker 04:
that they were hiding.

[00:15:33] Speaker 04:
In fact, they kind of come off video, in a sense, for a moment while they're hiding.

[00:15:37] Speaker 04:
That's where the first agent sends the second one, kind of directs them in.

[00:15:40] Speaker 04:
That's when the second agent then finds Mr. Jimenez Peralta.

[00:15:45] Speaker 02:
And when you started your argument, I think you said we turned over everything we had, like we showed the magistrate judge everything we had.

[00:15:51] Speaker 02:
Do you mean by that that the government looked at all of the files of the investigation of this Facebook group that

[00:15:59] Speaker 02:
different officers to see whether these officers were mentioned in those files?

[00:16:03] Speaker 04:
So what I mean is the the HMTHORN process or the HMTHORN check provides anything that was in the personnel file so to the extent that information and my understanding was anything derogatory went into the personnel files that would have been found and then there was the additional discussion that was included in the sealed material but in terms of like I guess I have a question

[00:16:30] Speaker 03:
many of them were still open, a large number of them were still open.

[00:16:34] Speaker 03:
So it's quite possible that there was an ongoing investigation by CBP and that the information hadn't made its way into the agent's files at the time that this ex-party application was made.

[00:16:49] Speaker 03:
And so I guess what I'm considering

[00:17:00] Speaker 03:
or Facebook page because they were investigating it and someone could have

[00:17:17] Speaker 03:
page to see if it returned any results.

[00:17:20] Speaker 03:
Because, arguably, if there was a post, a like, or a comment, then that would have been cross-examination material that would have been turned over.

[00:17:31] Speaker 03:
But because CBP hadn't finished their

[00:17:37] Speaker 03:
There was nothing in Agent Seidel's file to acknowledge that.

[00:17:47] Speaker 03:
Would the government have had, would the prosecution team, and I use that in quotes, had the obligation to search the Facebook file in CBP's possession?

[00:18:10] Speaker 04:
part of the issue here is I don't know, and the record certainly doesn't disclose where we were at in terms of the investigations.

[00:18:17] Speaker 04:
In terms of what investigation, as it were, that the prosecution team did, that's referenced in the sealed materials, but I do not believe there was anything that was kind of going out to look for additional material.

[00:18:28] Speaker 04:
The, I think the underlying

[00:19:04] Speaker 04:
first instance, again, determine, is there anything here?

[00:19:07] Speaker 04:
If so, is it material?

[00:19:09] Speaker 02:
But so, I mean, was it an error for the magistrate judge not to ask that question at the time?

[00:19:15] Speaker 02:
I mean, I know you have an argument that even if it was error, it was harmless, but wouldn't it be error if there was, down the hall, the whole Facebook page and it was still being searched and so it wasn't in the file yet and they didn't look at it?

[00:19:26] Speaker 02:
Wouldn't that be an error?

[00:19:29] Speaker 04:
I guess assuming that the entire Facebook page exists and we could, we could search it possibly, but the only reason I'm hesitating is because there's not a requirement that we go out and search for information.

[00:19:37] Speaker 04:
So in your hypothetical, it sounds like we have all of the information already.

[00:19:42] Speaker 03:
So in that case, yes, we would need to.

[00:19:43] Speaker 03:
Well, I guess the question is, who's we?

[00:19:46] Speaker 03:
Someone in CPP had some information about the Facebook page, right?

[00:19:50] Speaker 03:
And so the question is,

[00:20:03] Speaker 04:
My understanding is we did not have, we meaning the government at large, have the entire page or even big chunks of the page.

[00:20:12] Speaker 04:
This was a report by ProPublica.

[00:20:13] Speaker 04:
They released, you know, several parts of it.

[00:20:16] Speaker 04:
The government looked through that, but we did not have kind of independent access to Facebook to get these pages.

[00:20:30] Speaker 01:
One of the declarations, I'm assuming, that suggests that the agent was trying to resurrect the Facebook page and wasn't able to do that.

[00:20:42] Speaker 01:
Correct.

[00:20:42] Speaker 04:
My understanding – implying from that and my understanding is, as counsel indicated, kind of once that ProPublica report came out, the whole thing kind of shut down, and so a lot of

[00:21:02] Speaker 04:
I was taking from the hypotheticals that possibly that had already been preserved some other way.

[00:21:07] Speaker 04:
In that case, then potentially we do need to look through that.

[00:21:10] Speaker 04:
Again, my understanding, recognizing where I'll set the record, is that that's not the facts on the ground.

[00:21:15] Speaker 01:
So if our review of what the magistrate judge did in reviewing the mature bills the government said before them, is this a, do we look at it de novo?

[00:21:26] Speaker 01:
Is it a mixed question?

[00:21:28] Speaker 04:
I think it's ultimately abuse of discretion, because it's a discovery question.

[00:21:33] Speaker 04:
the material and, well, did it go to bias or otherwise discoverable?

[00:21:36] Speaker 04:
Was it material?

[00:21:38] Speaker 04:
That's an abuse of discretion call for the magistrate judge.

[00:21:41] Speaker 04:
The district court then sitting on appeal from the magistrate judge also looked at it in terms of abuse of discretion.

[00:21:46] Speaker 04:
To the extent you're reviewing the district court, I think that same standard review would kind of follow all the way up.

[00:21:53] Speaker 04:
I'm happy to discuss the identification or any of the other issues if the court has questions.

[00:21:58] Speaker 04:
Otherwise, I'll submit.

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

[00:22:01] Speaker 04:
Thank you.

[00:22:16] Speaker 05:
And in terms of the harmlessness, I'm surprised my friend would say that without that agent's testimony, there'd still be a case.

[00:22:24] Speaker 05:
There would be no case.

[00:22:26] Speaker 05:
You wouldn't have an identification.

[00:22:28] Speaker 05:
You wouldn't have any statements on alienage.

[00:22:30] Speaker 05:
It would be absolutely guaranteed rule 29 because there would be no evidence linking the defendant to anything that happened on that day.

[00:22:40] Speaker 05:
And so, and finally,

[00:22:51] Speaker 02:
custody so I'm still just a little confused how these things come about even if we don't really trust the exact account that the agent has how he could not be the person who was found across the border well during this time period they were the border patrols arresting thousands of people all the time so the fact that they have some of them are actually

[00:23:19] Speaker 05:
possibly know that this individual in court that day had anything to do with what happened in November.

[00:23:25] Speaker 05:
I mean, he was out on bond for one thing.

[00:23:28] Speaker 05:
And so, I just don't see how the fact finder could possibly, I mean, that's like saying there's a bank robbery and you have evidence that the bank was robbed and nobody identifies the defendant as

[00:23:45] Speaker 01:
saying that if there was Brady material that would impeach the impartiality of the agent, that's equivalent to having no testimony at all on identity.

[00:23:59] Speaker 05:
Well, no, I'm saying that in terms of the harmlessness review, if the essential witness is disbelieved, then there's no evidence on essential elements of the crime.

[00:24:07] Speaker 01:
And you're saying that the Brady material would have

[00:24:19] Speaker 05:
I mean, that's the whole point of having the full cross-examination, the fact finder can get the demeanor.

[00:24:25] Speaker 05:
Just one final thing to intercept article I cite shows that thousands of these pages were archived.

[00:24:45] Speaker 01:
The United States versus Jimenez-Peralta is submitted.